^mvsW Earn Srljool Eibrarg Cornell UnlversHy Library KF 213.W74A56 Tife works of JKSS,,ffi?iWmiMliift Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024339644 THE WORKS OF JAMES WILSON ASSOCIATE JUSTICE OF THE SUPREME COURT OP THE UNITED STATES, AND PROFESSOR OF LAW IN THE COLLEGE OF PHILADELPHIA BEING HIS PUBLIC DISCOUKSES UPON JURISPRUDENCE AND THE POLITICAL SCIENCE INCLUDING LECTURES AS PROFESSOR OF LAW, 1790-2 EDITED BY JAMES DeWITT ANDREWS LEX PCNDAMENTUM EST LIBEETATIS, QUA PBUIMUB. LEGUM OMN£S SEKVI 8UMUS, UT UBEKI ESSE POSSIMUS. Cic. Vol. II. CHICAGO CALLAGHAN AND COMPANY 1896 Copyright, 1895, BY CALLAGHAN AND COMPANY. CONTENTS OF VOLUME II. PART II. CHAPTEE I. PAGE The National and State Constitutions— The LEGiSLATr/i! Departments .■ 3 CHAPTER II. The Executive Department 60 CHAPTER III. The Judicial Department.— Nature of Power 75 CHAPTER IV. ■ The Same Subject. — Nature and Conotitutios op Courts. . . 147 CHAPTER V. The Same Subjept.— Of Judges 157 CHAPTER VI. The Same Subject.— Of Juries 163 CHAPTER VII. The Same Subject.— Sheriffs and Coroners 236 CHAPTER VIII. The Same Subject. — Attornies and Counsellors 244 iii iv CONTENTS OF VOLUME II. CHAPTER IX. PAGE The Same Subject.— Op Constables 263 CHAPTER X. Of Corporations 365 CHAPTER XI. Of Citizens and Aliens S73 CHAPTER XII. Natural Eights of Individuals 396 PART III. CHAPTER I. TpE Nature of Crimes 337 CHAPTER II. Crimes Against Proper,ty— Rights of Individuals 376 CHAPTER HI. Crimes Against Liberty and Reputation 390 CHAPTER IV. Crimes Against Personal Safety 393 CHAPTER V. Crimes Immediately Affecting the States 413 CHAPTER VI. Crimes Affecting Natural Rights 423 CHAPTER VII. Crimes Against Civil Rights 43g CHAPTER VIII. Persons Capable of Committing Crimes and Different De- grees of Guilt 434 CONTENTS OF VOLUME II. V CHAPTER IX. PAGE Means to Prevent Offences 439 CHAPTER X. Appkehending, Tkying and Punishing Offenders 445 APPENDIX TO VOLUME II. I. The History op Property 483 II. Nature and Extent of the Legislative Authority of Par- liament— Published August, 1774 501 '•All Men are by Nature Equal and Free " 507 III. Speech in Vindication of the Colonies, — Delivered in Pennsylvania Convention, Jan., 1775 547 IV. Editor's Note A. — Who are the People? 566 PART II. CHAPTER I. OP THE CONSTITUTIONS OF THE UNITED STATES AND OP PENNSYLVANIA — OP THE LEGISLATIVE DEPART- MENT. In my plan, I mentioned, that I would consider our municipal law under two great divisions ; that, under the first, I would treat of the law, as it relates to persons ; and that, under the second, I would treat of it, as it relates to things. I pursue those two great divisions ; and begin with persons.^ Persons are divided into two kinds — natural and arti- ficial. Natural persons are formed by the great Author of nature. Artificial persons are the creatures of human sagacity and contrivance ; and are framed and intended for the purposes of government and society. When we contemplate the constitution and the laws of the United States and of the commonwealth of Pennsyl- vania ; the mighty object, which first arrests our attention, is — the people. In the laws of England, as they have been imposed or received during the last seven centuries, the [1 Every individual or entity which has rights or the capacity to owe duties is a person. In the strict legal sense the word person refers to the capacity, character or status of the being rather than to the man or entity. The Romans expressed the idea by saying : " Unus homo sus- tinet plures personas ;" or, one man sustains many conditions or char- acters. 1 Austin's Jur. 362.] 3 4 LECTURES ON LA"W. "people" is a title, which has scarcelj' found a place, or,, if it has found a place occasionally, it has attracted but a very disproportionate degree of notice or regard. Of the- prerogative of the king, frequent and respectful mentiou is made : he is considered and represented as the fountain of authority, of honor, of justice, and even of the most im- portant species of property. Of the majesty of the people, little is said in the books of our law. When they are in- troduced upon the legal stage, they are considered as the body, of which the king is the head, and are viewed as the subjects of his crown and government. This has not been the case in all countries ; it has not been the case in England at all times. It has, indeed, been the case too often and too generally ; but the pages of literature will furnish us with a few brilliant exceptions. Of one permit me to take a very particular notice ; for of a very particular notice it is highly deserving. At the mention of Athens, a thousand refined and en- dearing associations rush immediq,tely into the memory of the scholar, the philosopher, the statesman, and the patriot. When Homer, one of the most correct, as well as the oldest and one of the most respectable, of human authorities, enumerates the other nations of Greece, whose forces acted in the siege of Troy 5 he arranges them under the names of their different kings : but when he comes to the Athen- ians, he distinguishes them by the peculiar appellation of " the people " ^ of Athens. Let it not surprise you, that I cite Homer as a very respectable authority. That celebrated writer was not more remarkable for the elegance and sublimity, than he was for the truth and precision, of his compositions. The geographer, who could not relish the exquisite beauties of his poetry, felt, however, uncommon satisfaction in ascer- taining, by the map, the severe accuracy of his geographi- ^ ^t|noi. Pot. 12, Iliad 1. 2, V. 547. OF THE LEGISLATIVE DEPARTMENT. 5 cal descriptions. But let me mention what is still more to my present purpose and justification. From one of the prations of iEschines it appears highly probable,^ that in the Athenian courts of justice, the poems of Homer, as- well as the laws of Athens, were always laid upon the table before the judges ; and that the clerk was frequently applied to, by the orator, to read passages from the former^ as well as from the latter. On the authority of two lines from Homer's catalogue of the Grecian fleet, was deter- mined a controversy between the Athenians and the inhab- itants of Salamis. His immortal poems, like a meteor in the gloom of night, brighten the obscure antiquities of his countrjr ? 2 By some of the most early accounts, which have been transmitted to us concerning Britain, we are informed, that " the people held the helm of government in their own power." * This spirit of independence was a ruling principle among the Saxons likewise. Concerning their original, it is both needless and fruitless — I use the ex- pressions of the very learned Selden * — to enter the lists ; whether they were natives from the northern parts of Germany, or the relics of the army under Alexander. But their government, adds he, was, in general, so suitable to that of the Grecians, that it cannot be imagined but much of the Grecian wisdom was derived into those parts. The people were a free people, governed by laws which they themselves made ; and, for this reason, they were denom- inated free. This, he subjoins, was like unto the man- ner of the Athenians. The Saxons were called freemen, because they were born free from all yoke of arbitrary power, and from all laws of compulsion, except those which were made by their voluntary consent : for all freemen have votes in » 1 Gill. 26. " 1 Gill. 3. « Bac. on Gov. 2. * Id. 9. 6 LECTURES ON LAW. making and executing the general laws.^ The freedom of a Saxon consisted in the three following particulars : 1. In the ownership of what he had. 2. In voting upon any law, by which his person or property could be affected. 3. In possessing a share in that judiciary power, by which the laws were applied.''^ By this time, we clearly perceive the exquisite pro- priety, historical as well as political, with which the people appear in the foreground of the national constitution and of that of Pennsylvania. " We, the people of the United States, ordain and establish this constitution for the United States of America." " We, the people of the com- monwealth of Pennsylvania, ordain and establish this con- stitution for its government." In free states, the people form an artificial person or body politic, the highpst and noblest that can be known. They form that moral person, which, in one of my former lectures,^ I described as a complete body of free natural persons, united together for their common benefit ; as hav- ing an understanding and a "will ; as deliberating, and resolving, and acting ; as possessed of interests which it ought to manage ; as enjoying rights which it ought to maintain ; and as lying under obligations, which it ought to perform. To this moral person, we assign, by way of eminence, the dignified appellation of state.* 1 Bac. on Gov. 34. 2 Id. 84. 8 Ante, vol 1, pp. 304, 305. [* In an address of David Dudley Field, read before the Congress on Jurisprudence and Law Reforms of the World's Congress Auxiliary, in 1893, and widely published (25 Chicago Legal News, p. 438), he asserts that at the time ot the Declaration of Independence " The People " meant the white adult males, and he states further that our forefathers began by asserting the sovereignty of the people (the white male adults). Judge Cooley, in his Constitutional Limitations, 6th Ed., p. 40 (it did not appear in earlier editions), says that "as a practical fact the sov- ereignty is vested in the persons who are permitted by the constitution of the State to exercise the election franchise." OF THE LEGISLATIVE DEPARTMENT. 7 In discussing the rights and duties of a state, I observed, that it is its right, and that, generally, it is its duty, to form a constitution, to institute civil government, and to establish laws. The general principles, on which consti- tutions should be formed, government should be instituted, and laws should be established, were treated at large then, and will not be repeated now. It is my present business to trace the application of those principles, as that applica- tion has been practically made by the people of the United States, and, in particular, by the people of Pennsylvania. I mention the people of Pennsylvania in particular; because, in discussing this system, it is necessary that I should select the constitution, and government, and laws of some one of the states in the Union ; and because it is natural, for manj- reasons, that Pennsylvania should be the state, wliose constitution, and. government, and laws are selected for this discussion. The observations, how- ever, which I shall have occasion to make with regard to Pennsylvania, will, in the greatest number of instances, apply to lier sister states, with an equal degree of pro- priety. Whenever any very striking difference or coin- cidence shall occur to me, I shall distinguish it by an especial notice. The people of the United States must be considered at- tentively in two veiy different views — as forming one na- tion, great and united ; and as forming, at the same time, a number of separate states, to that nation subordinate. Had the latter confined himself to language more exact, and stated that the exercise of the sovereignty was entrusted to the voters, the ex- pression would have been less open to criticism and could not have been hannfully misleading. Wlien two such noted jurists use an expression announcing a principle at war with the whole theory of our Constitu- tion, no apology need be offered for an extended examination of the question involved. The editor therefore submits his views upon the question, together with tlie authority for the same, in Appendix, Note A. This note is a copy of an article published in the Chicago Legal >'ews, Vol. 'Xt, p. 79, with some slight changes.] 8 LECTURES ON LAW. but independent as to their own interior government. This veiy important distinction must be continually be- fore our eyes. If it be properly observed, everything will appear regular and proportioned : if it be neglected, end- less confusion and intricacy will unavoidably ensue. The constitution of the United States is arranged, as we have formerly seen it ought to be, under three great divisions — the legislative department, the executive de- partment, and the judicial department. The legislative power is divided between two different bodies, a senate, and a house of representatives. The reasons and the importance of this division were explained in a former part of my lectures.' In discoursing farther concerning the legislature of the United States, I shall regulate myself by the following order. I shall treat, I. of the election of its members ; II. of their number ; III. of the term, for which they are elected; IV. of the laws, and rules, and powers of the two houses ; V. of the manner of passing laws ; VI. of the powers of congress. I. I am first to treat concerning the election of mem- bers of congress. Many of the remarks, which I shall make on this subject, will be applicable to the election of members of the general assembly of this commonwealth ; for the assembly of Pennsylvania, like the congress of the United States, consists of two bodies, a senate and a house of representatives. Some important articles of discrimina- tion will be noticed in their proper places. The constitution of the United States and that of Penn- sylvania rest solely, and in all their parts, on the great democratical principle of a representation of the people ; in other words, of the moral person, known by the name of the state. This great principle necessarily draws along with it the consideration of another principle equally great — 1 Ante, vol. ], p. 394, etc. OF THE LEGISLATIVE DEPAKTMENT. 9 the principle of free and equal elections. To maintain, in purity'and in vigor, this important principle, whose energy sliould pervade the most distant parts of the government, is the first duty, and ought to be the first care, of every free state. This is the original fountain, from which all the streams of administration flow. If this fountain is poisoned, the deleterious influence will extend to the remotest cor- ners of the state : if this fountain continues pure and salu- brious, the benign operation of its waters will diffuse uni- versal health and soundness. Let me, by the way, be indulged with repeating a remark, which was made and fully illustrated in a former lecture ^ — that government, founded solely on representation, made its first appearance on this, and not on the European side of the Atlantic.^ Of the science of just and equal government, the pro- gress, as we have formerly seen, has been small and slow. Peculiarly small and slow has it been, in the discovery and improvement of the interesting doctrines of election and representation. If, with regard to other subjects, government may be said, as it has been said, to be still in its infancy ; we may, with regard to this subject, consider it as only in its childhood. And yet this is the subject, which must form the basis of every government, that is, at once, efficient, respectable, and free. 1 Ante,^Vol. 1, p. 429. P This suggests the query as to the fundamental principles which per- vade this government. The first is the one suggested, viz. : That no power is to he exercised as of personal right, but by delegation according to the idea of representation. Another principle quite likely to he lost sight of in the popular phrase — the sovereignty of the people — is that all power is limited. These are the two main pillars of this government. There are two features of administration not found in any government anterior to ours, viz. : The power of the judiciary to declare a legislative act invalid, and the combination of a Representative Republic with the confederation of states, each operating upon individuals.] 10 LECTURKS ON LAW. The pyramid of government — and a republican govern- ment may well receive that beautiful and solid form — should be raised to a dignified altitude : but its foundations must, of consequence, be broad, and strong, and deep. The authority, the interests, and the affections of the peo- ple at large are the only foundation, on which a super- structure, proposed to be at once durable and magnificent, can be rationally erected. Representation is the chain of communication between the people and those, to whom they have committed the exercise of the powers of government. If the materials, which form tKis chain, are sound and strong, it is unneces- sary to be solicitous about the very high degree, to which they are polished. But in order to impart to them the true republican lustre, I know no means more effectual, than to invite and admit the freemen to the right of suf- frage, and to enhance, as much as possible, the value of that right. Its value cannot, in truth, be enhanced too highly. It is a right of the greatest import, and of the most improv- ing efficacy. It is a right to choose those, who shall be intrusted with the authority and with the confidence of the people : and who may employ that authority and that confidence for the noblest interests of the commonwealth, without the apprehension of disappointment or control. This surely must have a powerful tendency to open, to enlighten, to enlarge, and to exalt the mind. I cannot, with sufficient energy, express my own conceptions of the value and the dignity of this right. In real majesty, an independent and unbiassed elector stands superior to princes, addressed by the proudest titles, attended by the most magnificent retinues, and decorated with the most splendid regalia. Their sovereignty is only derivative, like the pale light of the moon ; his is original, like the beam- ing splendor of the sun. The benign influences, flowing from the possession and OF THE LEGISLATIVE DEPARTMENT. 11 exercise of this right, deserve to be clearly and fully pointed out. •! wish it was in my power to do complete justice to the important subject. Hitherto those benign influences have been little understood ; they have been less valued ; they have been still less experienced. This part of the knowledge and practice of government is yet, as ha.-i been observed, in its childhood. Let us, however, nurse and nourish it. In due time, it will repay our care and our labor ; for, in due time, it will grow to the strength and stature of a full and perfect man.' The man, who enjoys the right of suffrage, on the exten- sive scale which is marked by our constitutions, will natur- ally turn his thoughts to the contemplation of public men and public measures. The inquiries he will make, tlie information he will receive, and his own reflections on both,, will afford a beneficial and amusing employment to his mind. I am far from insinuating, that every citizen should be an enthusiast in politics, or that the interests of him- self, his family, and those who depend on him for their comfortable situation in life, should be absorbed in Quixotic speculations about the management or the reformation of the state. But there is surely a golden mean in things ; and there can be no real incompatibility between the dis- charge of one's public, and tliat of his private duty. Let P Chancellor Kent, in proposing the healtli of Mr. Webster at a public- dinner, speaking of the constitutional debates in f'ongrfss, reports of which were widely read, said : "The consequences of that discussion have been extremely beneficial. It turned the attention of the public Ut the great doctrines of national rights and national union. Constitutional law ceased to remain wrapped up in tlio breasts, and taught only by the responses, of the living oracles of the law. Socratps was said to have drawn down philosophy from the skies, and scattered It among the schools. It may with equal truth be said that constitutional law, b> means of those senatorial discussions and the master genius that guided them, was rescued from the archives of our tribunals and the libraries of lawyers, and placed under the eye, and submitted to the judgment, of the American people. Their verdict is with u<, and from it there lies no appeal."' 1 Webster's Works, 104.] 12 LECTTJEES ON LAW. private industry receive the warmest encouragement ; for it is the basis of public happiness. But must the boAV of honest industry be always bent? At no moment shall a little relaxation be allowed ? That relaxation, if properly ■directed, may prove to be instructive as well as agreeable. It may consist in reading a newspape*', or in conversing >vitli a fellow citizen. May not the newspaper convey some interesting intelligence, or contain some useful essay ? May not the conversation take a pleasing and an improv- ing turn ? Many hours, I believe, are everywhere spent, in talking about the unimportant occurrences of the da}-, or in the neighborhood ; and, perhaps, the frailties or the imperfections of a neighbor form, too often, one of the sweet but poisoned ingredients of the discourse. Would it be any great detriment to society or to individuals, if ■other characters, and with different views, were more fre- quently brought upon the carpet ? Under our constitutions, a number of important appoint- ments must be made at every election. To make them is, indeed, the business only of a day. But it ought to be the business of much more than a day, to be prepared for making them well. When a citizen elects to office — let me repeat it — he performs an act of the first political con- sequence. He should be employed, on every convenient •occasion, in making researches after proper persons for fill- ing the different departments of power ; in discussing, with his neighbors and fellow citizens, the qualities, which ought to be possessed by those, who enjoy places of public trust ; and in acquiring information, with the spirit of manly ■candor, concerning the manners and characters of those, who are likely to be candidates for the public choice. A habit of conversing and reflecting on these subjects, and of governing his actions by the result of his deliber- iitions, would produce, in the mind of the citizen, a uni- form, a strong, and a lively sensibility to the interests of OP THE LEGISLATIVE DEPARTMENT. 13 lais country. The same causes will effectuate a warm and enlightened attachment to those, who are best fitted, and best disjjosed, to support and promote those interests. By these means and in this manner, pure and genuine patriot- ism, that kind, which consists in liberal investigation and disinterested conduct, is produced, cherished, and strength- ened in the miyd : by these means and in this manner, the warm and generous emotion glows and is reflected from breast to breast. Investigations of this nature are useful and improving, not to their authors only ; they are so to their objects like- wise. The love of honest and well earned fame is deeply rooted in honest and susceptible minds. Can there be a stronger incentive to the operations of this passion, than the hope of becoming the object of well founded and dis- tinguishing applause ? Can there be a more complete gratification of this passion, than the satisfaction of know- ing that this applause is given — that it is given upon the most honorable principles, and acquired by the most honorable pursuits ? To souls trulj- ingeniious, indis- criminate praise, misplaced praise, flattering praise, in- terested praise have no bewitching charms. But when public approbation is tlie result of public discernment, it must be highly pleasing to those who give, and to those who receive it. If the foregoing remaiks and deductions be just ; and I believe they are so | the right of suffrage, properly under- stood, properly valued, and properly exercised, in a free and well constituted government, is an abundant source of the most rational, the most improving, and the most en- dearing connection among the citizens. All power is originally in the people ; and should be exercised by them in person, if that could be done with convenience, or even with little difficulty. „In some of the small republics of Greece, and in the first ages of the 14 LECTURES OX LA^V. commonwealth of Rome, the people voted in their aggre- gate capacity. Among the ancient Germans also, this was. done upon great Occasions. " De minoribus consultant principes," says Tacitus, 1 " de majoribus omnes:" From their practices, some of the finest principles of modern governments are drawn .^ But in large states, the people cannot assemble together. As they cannot, therefore, act by themselves, they must act by their representatives. And, indeed, in point of right, there is no difference between that which is done by the people in their own persons, and that which is done by their deputies, acting agreeably to the powers received from them. In point of utility, there is as little difference ; fo]' there is no advantage, which may not be obtained from a free and adequate representation, in as effectual a man- ner, as if every citizen were to deliberate and vote in per- son.^ To the legitimate energy and weight of true represen- tation, two things are essentially necessary. 1. That the representative should express the same sentiments, which the represented, if possessed of equal information, would express. 2. That the sentiments of the representatives, thus expressed, should have the same weight and influence, as the sentiments of the constituents would have, if ex- pressed personally. To accomplish the first object, all elections ought to be free. If a man is under no external bias, when he votes for a representative, lie will naturally choose such as, he imagines, will, on the several subjects which may come before them, speak and act in the same manner as himself. Every one, who is not the slave of voluntary error, sup- poses that his own opinions and sentiments are right : he must likewise suppose, that the sentiments and opinions- of those who think with him are right also. Every other 1 De vaoT. Germ, c. 11. p See Appendix, Note A.J OF THE LEGISLATIVE DEPARTMENT. 15 man, equally free from bias, will vote with similar views. When, therefore, the votes generally or unanimously •centre in the same representatives, it is a satisfactory proof, that the sentiments of the constituents are generally or altogether in unison, with regard to the matters, which, they think, will be brought under the consideration of their representatives ; and also, that the sentiments of the rep- resentatives will be, with regard to those matters, in unison with those of all, or of a majority of their constituents. ^ To accomplish the second- object, all elections ought to be equal. Elections are equal, when a given number of citizens, in one part of the state, choose as many represent- atives, as are chosen by the same number of citizens, in any other part of the state. In this manner, the proportion of the representatives and of the constituents will remain invariably the same. If both the requisites are established and preserved, such councils will be given, such resolutions will be taken, and such measures will be pursued, by the representative bodj-, as will receive the concurrence, the approbation, and the support of the community at large. In a free government, it is of essential importance to ascertain the right of suffrage, and those inhabitants who are entitled to the exercise of that right. To vote for members of a legislature, is to perform an act of original sovereignty. No person unqualified should, therefore, be permitted to assume the exercise of such pre-eminent power. We are told, that, among the Athenians, exquisitely sensible to all the rights of citizenship, a stranger who in- terfered in the assemblies of the people, was punished with death. Such dangerous interference was considered as a species of treason against their rights of sovereignty. A momentous question now occurs — who shall be en- titled to suffrage ? This darling privilege of freemen P See John Adams' inaugural address, March 4, 1797.] , IC LECTURES ON LAW. should certainly be extended as far as considerations of safiety and order will possibly admit. The correct theory and the true principles of liberty require, that every citi- zen, whose circumstances do not render him necessarily dependent on the will of another, sliould possess a vote in electing those, by whose conduct his property, his reputa- tion, his liberty, and his life, may be all most materially affected.' By the constitui;ion of the United States,^ the members of the house of representatives shall be chosen by the people of the several states. The electors, in each state, shall have the qualifications requisite for electors of the most numerous branch of the state legislature. This regulation is generous and wise. It is generous ; for it intrusts to the constitutions or to the legislatures of the several states, the very important power of ascertain- ing and directing the qualifications of those, who shall be entitled to elect the most numerous branch of the national legislature. This unsuspicious confidence evinces, in the- national constitution, the most friendly disposition towards the governments of the several states. For how can suchi a proper disposition be evinced more strongly, than by providing that its legislature, so far as respects the most numerous branch of it, should stand upon the same foundation with theirs ; and by providing farther, that this [1 This principle is without doubt an essential one, and but a corollary to the principle that power is not to be exercised as of right, but the- inquiry arises : In what position does that place us in reference to that highly respectable, intelligent and patriotic class of our natural-born, citizens, viz., the unmarried portion of our females, who are not in such a relation as to have virtual representation. The question of female- suffrage is not to be considered merely in the light of their desire or dis- inclination to vote, but upon the broader ground of public utility, andl with a clear view of natural equality of right and duties.. See Note A im Appendix.] 2 Art. ],.s. 2. OF THE LEGISLATIVE DEPARTMESTT. 17 foundation should be continued or altered by the- states themselves ? This regulation is wise as well as generous. An atten- tion to its genuine principle and tendency must have a. strong effect, in preventing or destroying the seeds of jealousy, which might otherwise spring up, with regard to the genius and views of the national government. It has embarked itself on the same bottom with the govern- ments of the different states : can a stronger proof be given of its determination to sink or swim with them? Can proof be given of a stronger desire to live in mutual harmony and affection ? This is an object of the last im- portance ; for, to adopt an expression used by my Lord Bacon, " the uniting of the hearts and affections of the people is the life and true end of this work." ^ The remarks which I have made on this subject place, in a clear and striking point of view, the propriety, and indeed the political necessity, of a regulation made in another part of this constitution. In the fourth section of the fourth article it is provided, that, " the United States shall guaranty to every state in this Union a re- publican form of government." Its own existence, as a government of this description, depends on theirs.^ As the doctrine concerning elections and the qualifica- tions of electors is, in every free country, a doctrine of the first magnitude ; and as the national constitution has, with regard to this doctrine, rested itself on the govern- ments of the several states ; it will be highly proper to take a survey of those provisions, which, on a subject so interesting, have been made by the different state constitu- tions : for every state has justly deemed the subject to be of constitutional importance. ' 4 Ld. Bac. 220. [2 Chief Justice Chase said in liis opinion in Texas v. Wliite : "With- out the states in union there could be no such political body as the United States." 7 Wallace U. S. Rep. p. 725.] 18 LECTURES ON LAW. In the constitution of Pennsylvania, the great principle, which animates and governs this subject, is secured by an explicit declaration, that " elections shall be free and «qual." ^ This is enumerated among the great points, which are " excepted out of the general powers of govern- ment, and shall forever remain inviolate." ^ The practi- cal operation of this great and inviolable principle is thus specified and directed : " In elections by the citizens, «very freeman of the age of twenty-one years, having re- sided in the state two years next before the election, and within that time paid a state or county tax, which shall have been assessed at least six months before the election, shall enjoy the rights of an elector." ^ It well deserves, in this place, to be remarked, how con- genial, upon this great subject, the principles of the con- stitution of Pennsylvania are to those adopted by the government of the Saxons. The Saxon freemen, as we have already seen, had votes in making their general laws.* The freemen of Pennsylvania, as we now see, en- joy the rights of electors. This right, it has been shown, is equivalent, and, in a state of any considerable extent, must, on every principle of order and convenience, be substituted to the other. This is far from being the only instance, in which we shall have the pleasure of finding the old Saxon maxims of government renewed in the American constitutions. Particular attention will be paid to them, as they present themselves. By the constitution of New Hampshire, " every male inhabitant, with town privileges, of twenty-one years of age, paying for himself a poll tax, has a right to vote, in the town or parish wherein he dwells, in the election of representatives." ^ In Massachussetts, this right is, under the constitution, 1 Art. 9, s. 5. 2 Art. 9, s. 26. a Cons. Penn. Art. 3, s. 1. * Bac. on. Gov. 34. 6 Cons. N. H. p. 11, li. OF THE LEGISLATIVE DEPARTMENT. 19 «njoyed by " every male person, being twenty-one years of age, and resident in any particular town in tbe com- monwealth for the space of one year next preceding, hav- ing a freehold estate within the same town, of the annual income of three pounds, or any estate of the value of sixty pounds." Every one so qualified may " vote in the choice of a representative for the said town.'' ^ The right to choose representatives in Rhode Island is vested in " the freemen of the respective towns or places." This regulation is specified in the charter of Charles the Second. The state of Rhode Island and Providence Plan- tations has not assumed a form of government different from that, which is contained in the above mentioned charter.^ The qualifications requisite, in the state of Connecticut, to entitle a person to vote at elections, are, maturity in years, quiet and peaceable behavior, a civil conversation, and forty shillings freehold, or forty pounds personal estate : if the selectmen of the town certify a person quali- fied in those respects, he is admitted a freeman, on his taking an oath of fidelity to the state.'^ It ought to be observed, by the way, that this power to admit persons to be freemen, or to exclude them from being freemen, according to the sentiments which others entertain concerning their conversation and behavior, is a power of a very extraordinary nature ; and is certain!}' capable of being exercised for very extraordinary pur- poses. The constitution of New York ordains "that every male inhabitant of full age, who shall have personally re- sided within one of the counties of the state, for six months immediately preceding the day of election, shall, at such election, be entitled to vote for representatives of the said 1 Cons. Mass. c. 1, s. 3, 4. = djar. R. I. p. 41, 51. ' Cons. Con. p. 54. 20 LECTUBES ON LAW. county in assembly ; if during the time aforesaid he sliall have been a freeholder, possessing a freehold of the value of twenty pounds, within the said county, or have rented a tenement therein of the yearly value of -forty shillings ; and been rated and actually paid taxes to the state." ^ " All inhabitants of New Jersey, of full age, who are- worth fifty pounds, proclamation money, clear estate within that government, and have resided within the county, in which they shall claim a vote, for twelve months immedi- ately preceding the election, shall be entitled to vote for representatives in assembly." ^ The right of suffrage is not specified in, the constitution of Delaware ; but it is provided, that, in the election of members of the legislature, it "shall remain as exercised by law at present." ^ In Maryland, '• all freemen above twenty-one years of age, having a freehold of fifty acres of land in the- county, in which they offer to vote, and residing therein ; and all freemen having property in the state above the value of thirty pounds current money, and having resided in the county, in which they offer to vote, one whole year next preceding the election, shall have a right of suffrage in the election of delegates for such county." * We find, in the constitution of Virginia, no specifica- tion of the right of suffrage : it is declared, however, that this right shall remain as it was exercised at the time when that constitution was made. ^ It is provided by the constitution of North Carolina, " that all freemen of the age of twenty-one years, who have been inhabitants of any county within the state twelve months immediately preceding the day of any elec- tion, and shall have paid public taxes, shall be entitled to J Cons. N. Y. c. 7, p. 58. a Cons. N. J. c. 4, p. 70, 71. ' Cons. Del. c. 5, p. 95. * Cons. Mar. c. 2, p. 109. « Cons. Vir. p. 126. OF THE LEGISLATIVE DEPARTMENT. 21 -vote for members of the house of commons, for the county in which they reside." ^ According to the constitution of South Carolina, " every free white man, of the age of twenty-one years, being a citizen of the state, and haying resided in it two years previous to the day of election, and who has a freehold of fifty acres of land, or a town lot, of which he hath been legally seized and possessed at least six months before such election, or, not having sucli freehold or lot, has resided within the election district, in which he offers to give his vote, six months before the election, and has, the preceding year, paid a tax of three shillings sterling to- wards the support of government, shall have a right to vote for members of the house of representatives for the election district, in which he holds such property, or is so resident." ^ I am not possessed of the present constitution of Georgia. By its late constitution, it was provided, that " all male white inhabitants, of the age of twenty-one years, and possessed, in their own right, of ten pounds value, and liable to pay tax in the state, or being of anj- mechanic trade, and shall have been a resident six months in the state, shall have a right to vote at all elections for -^ representatives." * 1 Cons. >r. C. c. 8, p. 1.34. ^ cons. S. C. art. ], s. 4. ' Cons. Georg. c. 9, p. 1.58. * Alterations have been made by several of the states in their constitu- tional provisions on this subject. According te tlie present constitution of Delaware, "every white free- man of the age of twenty-one years, having resided in the state two years next before the election, and within that time paid a state or county tax, whicli shall have been assessed at least six months before the election , shall enjoy the right of an elector." Art. 4, s. 1. By an amendment of the constitution of Maryland, confirmed in the year one thousand eight himdred and two, it is provided that every free white male citizen of the state, and no other, above twenty-one years of age, having resided twelve months next preceding the election in the 22 LBCTTJRES ON LAW. From the foregoing enumeration — its length and its minuteness will be justified by its importance — from the foregoing enumeration of the provisions, which have been made, in the several states, concerning the right of suf- frage, we are well warranted, I think, in drawing this city or county at which he offers to vote, shall have a right of suffrage. Constitutions, p. 174. The present constitution of Georgia directs tliat the electors of mem- bers of the general assembly shall be citizens and inhabitants of the state, and shall have attained the age of twenty-one years, and have paid all public taxes which may have been required of them, and which they have had an opportunity of paying agreeably to law, for the year preceding the election, and shall have resided six months within the county. Art. 4, s. 1. In order to complete the view talien of tliis subject in the text, it will be proper to state the provisions made by the constitutions of the new states admitted into the Union respecting the qualifications of electors. In Vermont, "every man of the full age of twenty-one years, having resided in the state for the space of one whole year next before the elec- tion of representatives, and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of the state : ' You do solemnly swear (or affirm) that when- ever you give your vote or suffrage, touching any matter that concerns the state of Vermont, you will do it so as in your conscience you shall judge will most conduce to the best good of the same, as established by the constitution, without fear or favor of any man.' " Cons. Ch. 2, s. 21. By the constitution of Tennessee, every freeman of the age of twenty- oue years and upwards, possessing a freehold in the county wherein he may vote, and being an inhabitant of the state, and every freeman, being an inhabitant of any one county in the state six months immediately preceding the day of election, shall be entitled to vote for members of tUo general assembly, for the county in which he shall reside. Art. .3, s. 1. The constitution of Kentucky provides, that in all elections for repre- sentatives, every free male citizen (negroes, mulattoes, and Indians ex- cepted) who at the time being hath attained to the age of twenty-one years, and resided in the state two years, and the county or town in which he offers to vote one year next preceding the election, shall enjoy the right of an elector. Art. 2, s. 8. In the state of Ohio, the rights of electors are enjoyed by all white male inhabitants above the age of twenty-one years, having resided in the state one year next preceding the election, and who have paid or are charged with a state or county tax. Cons. Art. 4, s. 1. Ed. OF THE LEGISLATIVE DEPAETMENT. 23 broad and general inference — that, in the United States, this right is extended to every freeman, who, by his resi- dence, has given evidence of his attachment to the coun- try, who, by having propertj-, or by being in a situatioir to acquire property, possesses a common interest with his fellow citizens; and who is not in such uncomfortable circumstances, as to render him necessarily dependent, for his subsistence, on the will of others. By the same enumeration, we are enabled, with con- scious pleasure, to view and to display the close approxi- mation, which, on this great subject, the constitutions of the American States have made, to what we have already seen to be the true principles and the coixect theory of freedom. Again ; the same enumeration places in the strongest and most striking light, the wisdom and the generous con- fidence, which rested one of the principal pillars of the national government upon the foundation prepared for it by the governments of the several states. With this sentiment I began — with this sentiment I conclude my remarks concerning the qualifications re- quired from those, who elect the house of representatives of the United States. We now proceed to examine the qualifications required from those, who are elected to that dignified trust. 1. A representative must have attained the age of twenty-five years. ^ It is amnsing enough to consider the different ages, at which persons have been deemed qualified cr disqualified for different purposes, both in private and in public life. A woman, as we learn from my Lord Coke and others, lias seven ages for several purposes appointed to her bj- tlie law. At seven years of age, her father, if a feudal superior, was entitled to demand from his vassals an aid 1 Cons. U. S. art. 1, s. 2. 24 LBCTTJEES ON LAW. to many her : at nine, she may have dower : at twelve, she may consent to marriage : at fourteen, she may choose a guardian : at sixteen, marriage might be tendered to her by her lord ; at seventeen, she may act as executrix : at twenty-one, she may alienate her lands and goods.^ A man, also, has different ages assigned to him for different purposes. At twelve years of age, he was formerly obliged to take the oath of allegiance : at fourteen, he can consent to marriage : at the same age he can choose his guardian : at twenty-one, he may convey his personal and real estate.^ The foregoing are the different ages allowed for differ- ent purposes in private life. In public life, there has, with regard to age, been a similar variety of assignments ; the reasons of some of which it is hard to conjecture ; for the propriety of others, it is equally hard to account. In the government of the United States, it is supposed, that no one is fit to be a member of the house of represent- atives, till he is twenty-five years of age ; to be a senator^ till he is thirty ; ^ to be a president, till he is thirty-five.* The duration assigned by nature to human life is often complained of as very short : that assigned to it by some politicians is much shorter. For some political purposes, a man cannot breathe before he numbers thirty-five years : as to other political purposes, his breath is extinguished the moment he reaches sixty. By the constitution of New York,5 "the chancellor, the judges of the supreme court, and the first judge of the county court in every count}', hold their offices — until they shall respectively have at- tained the age of sixty years." *^ How differently is the same object viewed at different times and in different countries ! In New York, a man is deemed unfit for the fii-st offices of the state after he is 1 1 Ins. 78 b. 2 Id. ibid. ' Cons. U. S. art. 1, s. 3. « Id. art. 2, s. 1. ^ c. 24, p. 63. [^ Chancellor Kent was retired under this law.] OF THE LEGISLATIVE DEPARTMENT. 25 sixty : in Sparta, a man was deemed unfit for the first offices of the state till he was sixty. Till that age, no one was entitled to a seat in the senate, the highest honor of the chiefs.' How convenient it would be, if a politician possessed the power, so finely exercised by the most beautiful of poets ! Virgil could, with the greatest ease imaginable, bring ^Eneas and Dido together; though, in fact, some centuries elapsed between the times, in which they lived. Why cannot some politician, by the same or some similar enchanting art, produce an ancient and a modern government as cotemporaries ? The effect would be admirable. The moment that a gentleman of sixty would be disqualified from retaining his seat as a judge of New York, he would be qualified for taking his seat as a senator of Sparta. 2. Before one can be a representative, he must have been seven years a citizen of the United States.^ Two reasons may be 'assigned for this provision. 1. That the constituents might have a full and matui'e oppor- tunity of knowing the character andmeritof their representa- tive. 2. That the representative might have a full and mature opportunity of knowing the dispositions and interests of his constituents. 3. The representative must, when elected, be an inhal> itant of that state, in which he is chosen.^ The qualification of residence we have found to be uni- versally insisted on with regard to those who elect : here the same qualification is insisted on with regard to those who are elected. The same reasons, which operated in favor of the former qualification, operate with equal, indeed, with greater force, in favor of this. A provision, :iilmost literally the same with the present one, was made in England three centuries and a half ago. By a, statute 1 1 Gil. c. .S, p. 107 ; 8 War. Bib. 29. •■^ Cons. U. S. art. 1, s. 2. ' Cons. U. S. art. 1, /s. 2. 26 LECTUBBS ON LAW. made in the first year of Henry the Fifth, it was enacted,, that " the knights of the shires, which from henceforth shall be chosen in every shire, be not chosen, unless they be resident within the shire where they shall be chosen, the day of the date of the writ of the summons of the parliament" — "And moreover it is ordained and estab- lished, that the citizens and burgesses of the cities and boroughs be chosen men, citizens and burgesses, resiant, dwelling, and frefe in the same cities and boroughs, and no other in any wise." ^ To this moment, the statute con- tinues unrepealed — a melancholy proof, how far degenerate and corrupted manners will overpower the wisest and most wholesome laws. From Sir Bulstrode Whitlocke we learn, that, above a century ago, non-compliance with this statute was " connived at." ^ The statute itself has been long and openly disregarded. The consequences of this dis- regard may be seen in the present state of the representation in England. Thus far concerning the election of the house of repre- sentatives, and the qualifications of the members and of the electors. It remains to speak concerning the election and the qualifications of the senators. The senators are chosen by the legislatures of the; several states. Every senator must have attained to the age of- thirty years ; he must have been nine years a citizen of the United States ; and he must, when elected, be an inhabitant of that state, for which he shall be chosen.^ Some have considered the senators as immediately rep- resenting the sovereignty, while the members of the other house immediately represent the people, of the several states. This opinion is founded on a doctrine which I considered and, I believe, refuted very fully in a former- 1 St. 1 Hen. 5, c. 1 Bar. 380. -^ 1 Wliitl. 496. *' Cons. U. S. art. 1, s. 3. OF THE LEGISLATIVE DEPAETMENT. 27 lecture : ^ the doctrine is this — that the legislative power is the supreme power of the state. The supreme power I showed to reside in the people. By the constitution of the United States, the people have delegated to the several legislatures the choice of senators, while they have retained in their own hands the choice of representatives. It would be unwise, however, to infer from this, that either the dignity or the importance of the senate is inferior to the dignity or the importance of the house of representatives. One may intrust to another the management, of an equal or even superior business, while he chooses to transact personally a business of an equal or even an inferior kind. Between the senate of the United States, and that of Pennyslvania, there is one remarkable point of difference, of which it will be proper, in this place, to take particular notice. According to the constitution of the United States, two senators are chosen by the legislature of each state : while the members of the house of representatives are chosen by the people. According to the constitution of Pennsylvania,^ the senators are chosen by the citizens of the state, at the same time, in the same manner, and at the same place where they shall vote for representatives. To choose the senators by the same persons, by whom the members of the house of representatives are chosen, is, we are told, to lose the material distinction, and, con- sequently, all the benefits which would result from the material distinction, between the two branches of the legislature. If this, indeed, should be the necessary consequence of electing both branches by the same persons ; the objection, it is confessed, would operate with a force irresistible .^ But many and strong reasons, we think, may be assigned^ why all the advantages, to be expected from two branches. ^ Ante, vol. 1, ch. 5. 2 ^pj j j_ 5_ 28 LECTUPtES ON LAW. of a legislature, may be gained and preserved, though those two branches derive their authority from precisely the same source. A point of honor will arise between them. The esprit du corps will soon be introduced. The principle, and direction, and aim of thi^ spirit will, we presume, be of the best and purest kind in the two houses. They will be rivals in duty, rivals in fame, rivals for the good graces •of their common constituents. Each house will be cautious, and careful, and circum- spect, in those proceedings, which, they know, must un- ^lergo the strict and severe criticism of judges, whose inclination will lead them, and whose duty will enjoin them, not to leave a single blemish unnoticed or uncor- rected. After all the caution, all the care, and all the circumspection, which can be employed, strict and severe criticism, led by inclination and enjoined by duty, will find something to notice and correct. Hence a double source of information, precision, and sagacity in planning, digesting, composing, comparing, and finishing the laws, both in form and substance. Every Mil will, in some one or more steps of its progress, undergo the keenest scrutiny. Its relations, whether near or more remote, to the prin- ciples of freedom, jurisprudence, and the constitution will be accurately examined; and its effects upon the laws already existing will be maturely. traced. In this manner, rash measures, violent innovations, crude projects, and partial contrivances will be stifled in the attempt to bring them forth. These effects of mutual watchfulness and mutual control between the two houses, will redound to the honor of each, and to the security and advantage of the state. The very circumstance of sitting in separate houses will be the cause of emulous and active separate exertion. The era, when the commons of England met in an apart- OF THE LEGISLATIVE DEPARTJIEifT. 29 ment by themselves, is, with reason, considered, by many writers, as a memorable era in the history of English liberty. " After the formation of the two houses of parlia- ment," says 'Sh. Millar, in his historical Vie^v of the Eng- lisli constitution, ^ " each of them came to be possessed of ■certain peculiar privileges ; which, although jjrobably the •objects of little attention in the beginning, haxe since risen to great political importance. The house of com- mons obtained the sole power of bringing in money bills." This subject will, by and by, come under our more imme- diate view. Rivals for character, as we have seen the two houses to be, they will be rivals in all pursuits, by which character can be acquired, established, and exalted. To these laud- able pursuits the crown of success will best be obtained, by vigor and alacrity in the discharge of tlie business committed to their care. A difference in the posts assigned to the two houses, ;ind in the number and duration of their members, will produce a difference in their sense of the duties required and expected from them. The house of representatives, for instance, form the grand inquest of the state. Thej^ will diligently inquire into grievances, arising both from men and things. Their commissions will commence or be renewed at short distances of time. Their sentiments, and views, and wishes, and even their passions, will have received a deep and recent tincture from the sentiments, and views, and wishes, and passions of their constituents. Into their counsels, and resolutions, and measures, this tincture will be strongly transfused. They will know the evils which exist, and the means of removing them : they will know the advantages already discovered, and the means of increasing them. As the term of their commis- sion and trust will soon expire, they will be desirous, ' p. G9C (4to). 30 LECTURES ON LAW. ■while it lasts, of seeing the public business put, at least,, in a train of accomplishment. From all these causes, a sufficient number of overtures and propositions will (jrigi- nate in the house of representatives. These o\'ertures and propositions will come, in their proper course, before the senate. Those, which shall appear premature, will be postponed till a more convenient season. Those, which shall appear crude, will be properly digested and formed. Those, which shall appear to be calculated upon toO' narrow a scale, will be enlarged in their operation and extent. Those, which shall appear to be dictated by local views, inconsistent with the general welfare, will be either rejected altogether, or altered in such a manner, as that the interest of the whole shall not be sacrificed, or ren- dered subservient, to the interest of a part. Articles of information, detached and seemingly uncon- nected, introduced by the house of representatives, at different times, from different places, with different motives, and for different purposes, will, in the senate, be collected, compared, methodized, and consolidated. Under their plastic hands, those materials will be employed in forming systems and laws, for the ijrosjjerity and happi- ness of the commonwealth. If, at any time, the passions or prejudices of tlie peojole should be ill directed or too strong ; and the house of representatives should meet, too higlily charged with the transfusion; it will be the business and the duty of tlie senate to allay the fervor; and, before it shall give a sanction to the bills or resolutions of llie other liouse, to introduce into them the requisite ingredients of mildness and moderation. Extremes, on one hand, are often the forerunners of extremes on the other. If a benumbing torpor should appear in the body politic, after the effects of violent convulsions have subsided; and if the contagious apathv OF THE LEGISLATIVE DEPARTMENT. ^l should spread itself over the house of representatives ; it will then become the business and the duty of the senate, to infuse into the public councils and public measures the jDroper portion of life, activity, and vigor. In seasons of prosperity, it will become the care of the senate to temper the extravagance, or repress the insolence, ■of jjublie joy. In seasons of adversity, the senate will be employed in administering comfort and cure to the public •despondency. In fine ; the senate will consider itself, and will be ■considered by the people, as the balance wheel in the great machine of government ; calculated and designed to retard its movements, when they shall be too rapid, and to ^accelerate them, when they shall be too slow. These reflections, which seem to arise naturally from "the subject before us, will, we hope, be sufficient to con- v^ince you, that the most beneficial purposes may be ration- ally expected from the senate of Pennsylvania, though the senators, as well as the members of the house of repre- sentatives, be elected immediately by the citizens of the ■commonwealth. Another circumstance, not yet mentioned, deserves to he added to this account. The districts for the election ■of senators, are to be formed by the legislature. In form- ing those districts, the legislature are empowered to in- Rous. Or. Com. 54, 1. 2, c. 5. " Mont. Sp. L. b. 3, c. 10. » 4 Bl. Coin. 390. OF THE EXECUTIVE DEPARTMENT. 71 inhuman one — that the letter of a penal law may be carried beyond the spirit of it ; and it may certainly be carried by the letter beyond the spirit, if judges and juries are prohibited, in construing it, from considering the spirit as well as the letter. But to return to our present subject. The most general opinion, as we have already observed, and, we may add, the best opinion, is, that, in every state, there ought to be a power to pardon offences. In the mildest systems, of which human societies are capable, there will still exist a necessity of this discretionary power, the proper exercise of which may arise from the possible circumstances oi every conviction. Citizens, even con- demned citizens, may be unfortunate in a higher degree, than that, in which they are criminal. When the cry of the nation rises in their favor ; when the judges themselves, descending from their seats, and laying aside the formi- dable sword of justice, come to supplicate in behalf of the person, whom they have been obliged to condemn ; in sucli a situation, clemency is a virtue ; it becomes a duty. But where ought this most amiable prerogative to be placed ? Is it compatible with the nature of every species of government? With regard to both these questions, different opinions are entertained. With regard to the last, the learned Author of tlie Commentaries on the laws of England declares his un- qualified sentiment — " In democracies, this power of par- don can never subsist ; for there nothing higher is ac- knowledged than the magistrate, who administers the laws : and it would be impolitic for the power of judging and of pardoning to centre in one and the same person. This would oblige him (as the President Montesquieu observes) very often to contradict himself, to make and unmake his decisions : it would tend to confound all ideas of right among the mass of the people ; as they would find it difficult to tell, whether a prisoner were discharged by 72 LECTURES ON LAW. his innocence, or obtained a pardon through favor. In Holland, therefore, if there be no stadtholder, there is no power of pardoning lodged in any other member of the state. " But in monarchies, tlie king acts in a superior sphere ; ;and though he regulates the whole government as the first mover, yet he does not appear in any of the disagreeable or invidious parts of it. Whenever the nation see him per- sonally engaged, it is only in works of legislature, magnifi- cence, or compassion." ^ Let us observe, by the way, the mighty difference be- tween the person described by Selden, as the first magis- trate among the Saxons, and him described by Sir William Blackstone, as the monarch of England since that period. The former was set in regular motion by the laws : the latter is the first mover, who regulates the whole govern- ment. Let me also repeat here, what has been mentioned in another place. One of the most enlightened writers on English jurisprudence imagines, that the power of pardon- ing is a power incommunicable to the democratical species of government. For the western world new and rich dis- coveries in jurisprudence have been reserved. We have found, that this species of government — the best and the purest of all — that, in which the supreme power remains with the people — is capable of being formed, arranged, jjroportioned, and organized in such a manner, as to exclude the inconveniences, and to secure the advantages of all the others. Why, according to Sir William Blackstone, can the power to pardon never subsist in a democracy? Because, says he, there, nothing higher is acknowledged, tlian the magistrate, who administers the laws. By pursuing the principle of democracy to its true source, we have dis- 1 i Bl. Com. 390, 39L OF THE EXECUTIVE DEPARTMENT. 73 covered, that the law is higher than the magistrate, who administers it ; that the constitution is higher than both ; and that the supreme power, remaining with the people, is liigherthan all the three. With perfect consistency, there- fore, the power of pardoning may subsist in our demo- ■cratical governments : with perfect propriety, we think, it is vested in the president of the United States. The constitution, too, of Pennsylvania, animated by the -wise and powerful recommendation, conveyed, by innum- erable channels, to the convention, which proposed and framed it, " that they should imitate, as far as it applies, ihe excellent model exhibited in the constitution of the United States " — the constitution of Pennsylvania ^ vests the power of pardoning in the governor of the common- wealth. It is by no means, however, a unanimous sentiment, if we collect the public sentiment from the constitutions of the different states of the Union, that the power of par- doning criminals should be vested solely in the supreme executive authority of the state. By the constitution of New York,^ the governor, in ■cases of treason or murder, can only suspend the execution of the sentence, until it shall be reported to the legislat- ure, at their subsequent meeting; and they shall either pardon, or direct the execution of the criminal, or grant a further reprieve. In the state of Delaware the governor possesses the power of granting pardons, except where the law shall ■otherwise direct.^ A similar legislative control is imposed •on the governors of Maryland, Virginia, and North Caro- lina, by the constitutions * of those states.^ 1 Art. 2, s. 9. 2 s. 18. 3 Cons. Del. s. 7. * Cons. Mar. s. 33. Cons. Vir. p. 127. Cons. N. C. s. 19. ' By the present constitution of Delaware, this legislative control over the power of the governor to grant pardons is destroyed — ^Art. 3, s. 9. 74 LECTURES ON LAW. In the states of New Hampshire, Massachusetts and South Carolina, pardons can be granted only after a con- yiction.^ The president and vice-president hold their offices dur- ing the term of four years. The president shall, at stated times, receive, for his services, a compensation, which shall neither be increased nor diminished during the period, for which he is elected ; and he shall not receive, within that period, any other emolument from the United States, or any of them. I here finish what I propose to say concerning the second great division of the national government — its executive authority. In Vermont, the power of the executive to grant pardons Is restrained in cases of treason and murder ; in which they have power " to grant re- prieves, but not to pardon, until after the end of the next session of assembly." Cons. c. 2, s. 11. By the constitution of Kentucky, the power of pardoning is, In cases of treason, vested in the general assem- bly, but the governor may grant reprieves until the end of their next session. Art. 3, s. 11. In Tennessee and Ohio, pardons can be granted only after conviction. Cons. Tenn. art. 2, s. 6 ; Cons. Ohio, art. 2, s. .5. In Georgia likewise, according to her present constitution, the governor can grant pardons only after conviction ; and in cases of treason and murder, he can only respite the execution, and make report thereof tO' the next general assembly, by whom a pardon may be granted. Cons, Geor. art. 2, s. 7. Ed. 1 Cons. N. H. pp. 18, 19. Cons. Mass. c. 2, ss. 1, 8. Cons. S. C. art> 2, s. 7. [The nature, extent and effect of the pardoning power and its exercise have been frequently determined. The most notable and instructive instances are found in the cases of Garland, 4 Wall. 333 ; Cummings u> U. S., Id. 277; Carlisle ». U. S., 16 Wall. 147, and Armstrong ». U. S.,. 13 Wall. 154.] CHAPTER III. OF THE JUDICIAL DEPARTMENT. The judicial power of the United States is vested in one supreme court, and in such inferior courts as are established by congress.' A court, according to my Lord Coke,'' is a place where justice is judicially administered.® To Egypt, where much wisdom, we are assured, was to be learned, we trace the first institution of courts of jus- tice. Concerning its administration, the Egyptians were remarkably vigilant and exact ; for they believed, that on it depended entirely the support or the dissolution of society. Their highest tribunal was composed of thirty judges.* At the head of it was placed the person, who at once, possessed the greatest share of wisdom, of probity, and of the public esteem. 1 Cons. U. S. art. 3, a. 1. M Ins. 58. [' This definition of a court seems entirely inadequate, it merely de- scribes how and what is done — viz. , justice is judicially administered and denominates the court as a place. The following seem to be essential elements : A court is a tribunal consisting of one or more persons. A court is a tribunal established by law, with power to hear controversies between persons and administer relief or punishment in accordance with established rules of law. " To administer justice judicially" is too indefinite to convey the in- formation essential to a definition, and does not suit the modern idea of separating the legislative from the judicial power. See Dillon's Lectures Law and Jurisprudence, p. 31-2, referring to Chicago & C. Ey. v. Minn., 134 U. S. 418.] « 1 Gog. Or. L, 55. 76 76 LECTURES OK LAW. The trials, it is said, were carried on in writing ; and, to avoid unnecessary delay, the parties were allowed to make only one reply on each side. When the evidence was closed, the judges consulted together concerning the merits of the cause. When they were fully understood and considered, the president gave the signal for proceed- ing to a judgment, by taking in his hand a small image, adorned with precious stones. When the sentence was pronounced, the president touched, with the image, the party, who had gained his cause. The image was with- out eyes ; and was the symbol, by which the Egyptians were accustomed to represent Truth. It is probably from this circumstance, that Justice has been painted blind. The judges of this court received from government what was necessary for their support ; so that the people paid them nothing for obtaining justice. We are told, that no advocates were admitted in this tribunal ; but that the parties themselves drew up their own processes. This, however, must probably be under- stood with some limitation ; for we cannot reasonably imagine, that all the inhabitants of Egypt were not only taught to write, but were also possessed of a degree of legal skill, sufficient to qualify them for composing their own defences. It is not unlikely, that the regulation went no farther than one, which we have seen adopted in an- other state — Every one has. a right to be heard by himself and his counsel. On the model of this high tribunal of Egypt, was formed the celebrated court of the Areopagus at Athens. This court was instituted, one thousand and five hundred years before the Christian era, by Cecrops, who was originallj' of Sais, a city of the lower Egypt, and to whom Athens, the seat of literature and politeness, of eloquence and patriotism, owed its foundation and first establishments. This excellent man relinquished the fertile banks of OF THE JUDICIAL DEPARTMENT. 77 the Nile, in order to avoid the tyranny, under which his native country, at that time, groaned. After a tedious voyage, lie reached the shores of Attica ; and was re- ceived ill the most friendly manner by its inhabitants. Placed, after some time, at the head of their affairs, he conceived the noble design of bestowing happiness on his adopted country. For this purpose, he introduced among his new compatriots many valuable and memorable insti- tutions, of which, indeed, he was not strictly the author — if he had, he would have been the first of legislators and the greatest of mortals — but which he brought, probably with his own judicious improvements, from a nation, who had been attentive to carry them to perfection during a long series of ages. Some of his institutions — in all of them wisdom and humanity shone conspicuous — will claim our future attention. At present, it is directed to the court of the Areopagus. Aristides — well qualified to decide upon this subject ; for he was distinguished by the appellation of the just — informs us, that this court was the most sacred and vener- able tribunal in all Greece. From its first establishment, it never pronounced a sentence, which gave reasonable cause of complaint. Strangers, even sovereigns, solicited and submitted to its decisions ; which contributed, more than anything else, to disseminate the principles of jus- tice first among the Grecians.^ The proceedings in this tribunal were, in some instances, very solemn and striking. In a prosecution for murder, the prosecutor was obliged to swear, that he was related to the person deceased — for none but near relations could prosecute — and that the prisoner was the cause of his death. The prisoner swore, that he was innocent of the crime, of which he was accused. Each confirmed his oath with the most direful imprecations ; wishing that, if he 12 Gog. Or. L. 16, 21. 1 Anac. 11. 78 LECTURES ON LAW. swore falsely, himself, his family, and his houses might be utterly destroyed and extirpated by the divine venge- ance.^ In early times, it is said, the parties were obliged to plead their causes themselves. But this severity was afterwards relaxed. Those, who were accused, might avail themselves of the assistance of counsel. The coun- sel, however, were never permitted, in pleading, to wan- der from the merits of the cause. This close and perti- nent manner of speaking gave the tone to the bar of Athens, and extended itself to the speeches, which were delivered in other assemblies.^ In this manner, we may naturally account for the condensed vehemence so re- markable in the orations of Demosthenes. Let me conclude this account of the Areopagus by mentioning an incident, seemingly of slight importance, but which will not be related without producing, in my hearers, feelings in proper unison with those, which the incident occasioned. A little bird, pursued by its enemy, took refuge in the bosom of one of the judges. Instead of protecting, he stifled it. For this instance of cruelty he received punishment; and was thus taught that he, whose heart is callous to compassion, should not be suffered to have the lives of the citizens at his mercy. You will not, after this, be surprised, when you are told, that the decisions of the Areopagus were deemed the standards of humanity, as well as of wisdom.^ In order to understand, fully and in their true spirit, the juridical institutions of the United States and of Pennsylvania, it will be of the greatest use to take a minute and historical view of the judicial establishments of England ; especially those which were formed under the government of the Saxons. n Pot. Ant. 106. 2 2 Gog. Or. L. 23. '2 Anac. 29ft OF THE JUDICIAL DEPARTMENT. 79 Civil governments, in their first institutions, are noth- ing more than voluntary associations for the purposes of society. When the Saxons first settled in Britain, they found themselves obliged, by the disorders of the times, to associate, in their different settlements, for their mutual' security and protection. Families, connected by consan- guinity or other ties, found it agreeable, as well as neces- sary, to live together in the same neighborhood, in order to enjoy the social pleasures of peace, as well as to give and receive assistance in the time of war. These societies were known by the appellation of vills or towns.^ On some occasions, an association of the same kind was necessary, and it was therefore gradually introduced, between the inhabitants of a larger district. Those larger districts were distinguished by the name of hundreds.^ The connections and the exigencies of society becoming, on great emergencies, still more important and extensive, the members of different hundreds also associated to- gether, and formed districts larger still, which were de- nominated shires. The officer who presided over them was called alderman or earl. Hundreders and tythingmen, as their names import, presided over the lesser associations.® This establishment of tythings, and hundreds, and shires, though, at first, intended chiefly for the mutual defence of the inhabitants, was soon rendered subser- vient to other purposes, salutary and important.* The same motives which induced them to associate for their security against foreign danger, induced them also to take measures for preventing or composing internal dif- ferences or animosities. In this manner, a judicial authority was gradually assumed by every tything over the members, of which it was formed. In the same man- ner and upon the same principles, the hundred exercised 1 Millar, 113. '•' Millar, 117. 8 Id., 117, 114. * Id. 121. 80 LECTURES ON LAW. the power of determining the controversies, which arose? within the bounds of its larger district. In the same manner and upon the same principles still, the shire estab- lished a similar jurisdiction over the different hundreds comprehended within its still more extensive territory. * These courts took cognizance of every cause, civil and criminal; and as, in the first instance, they enjoyed respectively the sole jurisdiction within the boundaries of each, they soon and naturally became subordinate, one to another: from the sentence of the ty thing, an appeal lay to the hundred, and from the sentence of the hundred, an appeal lay to the shire. It deserves also to be known — for it is important to know — that, besides the defence of the country and the decision of law suits, the Saxon tythings, hundreds, and shires were accustomed to deliberate upon matters of still greater consequence. They received complaints concern- ing the grievances or abuses in administration, which happened within their respective districts, and applied a remedy by introducing new regulations. Thus the heads of families in every tything exercised a legislative power, within their own limits : but were liable to be controlled by the meetings of the hundred, which enjoyed the same power in a larger district : both of these were subordinate to the assemblies of the shire, which possessed a legisla- tive authority over all the hundreds in that extensive division.2 Unto the county court, says Selden,^ all the freemen of the county assembled, to learn the law, to administer justice, and to provide remedy for public incon- venience.* ■ Millar, 122. 2 Id. 130. s gac. on Gov. 42. * A striking analogy will sometimes be found where it is least to be- expected. The empire of Peru was divided into small districts, each con- sisting of ten families : five of these constituted a higher class : two of these composed a third class, called a hundred ; ten hundreds formed the great class of a thousand. Over each of these a superintending officer was OF THE JUDICIAL DEPARTMENT. 81 As the freemen of a tything, of a hundred, and of a shire determined the common affairs of their several dis- tricts : so the union of people belonging to different shires produced a greater assembly, consisting of all the freemen of a kingdom. This national council was called the wit- tenagemote. The king presided. During the heptarchy, each of the Saxon kingdoms had a wittenagemote of its own : but when they were all reduced into one, a greater wittenagemote was formed, whose authority extended over the whole English nation.^ Those who could not attend the wittenagemote in person, had always the right of appointing a procurator to represent them in their absence.^ The wittenagemote exercised powers of a judiciary, as well as of a legislative kind. They heard complaints concerning great quarrels and enormities, which could not be adjusted or redressed by the ordinary courts ; and they endeavored, by their superior authority, either to reconcile the parties, or to decide their controversies. By frequent interpositions of this nature, the great council was formed into a regular court of justice, and became the supreme tribunal of the kingdom. In this tribunal, appeals from the courts of every shire, as well as original suits between the inhabitants of different shires, were finally determined.^ The original meetings of the wittenagemote were held regularly at two seasons of the year : but the increase of business, especially of that which regarded the adminis- appointed to administer justice, and to provide, that tliose committed t» his care should be furnished with the means of industry and the neces- saries of life. Between two governments, so remote from each other in time and place, this analogy could not have been the effect of imitation : it must have been the native result of similar states and circumstances of society. Bever. 7, 8. 1 Millar, 133. "Id. 143, 144. »Id. 150. 82 LECTUBES ON LAW. tration of justice, rendered it afterwards necessary that its meetings should be more frequent. Occasional meetings were, therefore, convened by the king. At those occa- sional meetings, the nobilitj^ who resided at a distance, seldom gave themselves the trouble of appearing. Of consequence, the business devolved on those members who happened to be at court, or who might be said to compose the privy council of the king. For this reason, they seldom undertook matters of general legislation; but confined themselves chiefly to the hearing of appeals. These smaller and occasional meetings of the wittenage- mote seem to have suggested the idea of the aula regis.^ After the conquest, appeals to parliament multiplied : the members of that assembly became daily less disposed to execute this part of their duty : a regular tribunal was, therefore, formed, in order to discharge it. Of this tribunal, the great officers of the crown became the con- stituent members. To these were added such as, from their knowledge of the law, were thought qualified to give the best assistance.'^ This court received, from the place in which it was commonly held, the appellation of the aula regis. In its constitution, it corresponded exactly with the cour de roy, which, after the accession of Hugh Capet, was gradually formed out of the ancient parlia- ment of France ; and with the aulic council, which, after the time of Otho the Great, arose, in the same manner, out of the diet of the German empire.^ For some time after its first formation, the king, when- ever he thought proper to sit as a judge, presided in the aula regis: but he, at length, ceased to discharge the ordinary functions of a judge ; and the grand justiciary became, in a manner, the sole magistrate of the court.* The institution of this court was a great improvement 1 Millar, 242, 243. a Id. 316. » Id. 317. 4 Millar, 318. OF THE JUDICIAL DEPARTMENT. 83 in the system of judicial policy. It was always in readi- ness to determine every controversy, criminal and civil. The reparation of injuries was secured; the expenses of litigation were diminished ; and justice pervaded the re- motest parts of the kingdom. It had the power of re- viewing the sentences of inferior jurisdictions ; and, by that means, produced a consistency and even a uniformity •of decision, in the judiciary system of the nation.^ From circumstances, however, which were the natural consequences of the introduction and progress of the feudal system in England, this court began and con- tinued to make ambitious and unnecessary encroachments ■on the inferior jurisdictions. Soon after the conquest, too, a complete separation of the ecclesiastical from the temporal courts took place. The bishop no longer sat as a judge in the court of the county ; nor the arch-deacon in that of the hundred. From the moment of this separa- tion, the clergy were zealous, and they were successful, in extending their own jurisdiction, and invading that of the subordinate temporal tribunals.^ By the gradual and strong operation of these causes and circumstances, the county courts, in particular, dwindled into a state of in- significance, their power was, at length, exercised only on mattery of an inconsiderable value ; and the greatest part of causes, civil, criminal, and fiscal, were drawn into the vortex of the aula regis, or into that of the ecclesiastical courts.^ So far as these changes related to the aula regis, the consequence of them was, that this court, at first admir- ably accommodated to the arrangements of the juridical system then existing in vigor, became, afterwards, de- fective, unwieldy, and inconvenient. It followed the king, wherever the political state of the kingdom required his presence. A court, thus ambulatory, was inconsistent 1 Millar, 324, 325. »Id. 331. UA. 326. 331. 6 8-4 LECTURES ON LAW. with the leisure and deliberation, which are necessary for judges in forming their decisions ; and it was still more incompatible with the interest of the parties, who, with their witnesses, were obliged to travel about from place to place, before they could obtain a final determination of their suits.^ Besides, the great increase of judicial busi- ness, which now crowded into the aula regis, rendered the proper dispatch of that business an object altogether unattainable : from this cause, therefore, as well as from the other, the administration of justice became tedious^ burthensome, and expensive. The remedies for these grievances seem to have been natural and easy — to establish the aula regis as a station- ary court — and to remand a great proportion of the original causes to those tribunals, which were best fitted, in the first instance, to decide them. These remedies, however, though easy and natural, were not applied. The county jurisdictions had ceased to be objects of favor at court : and the splendor of a retinue, composed of the oflicers of the judicial as well as tlie executive de- partment, was a gratification too fascinating to be easily relinquished. One of the remedies, indeed, it was found necessary tO' adopt in part, and the remedy, even in that part, was ob- tained with difficulty, and was soon abridged by ingenious and favorite fictions of law. When magna eharta was demanded of King John, one of the articles inserted in the important instrument was — " that common pleas should no longer follow the court of the king, but should be held iu some certain and appropriated place." When we see this regulation forming a part of that great transaction be- tween the king and the nation, we may be fully satisfied, that it was much wished for, but could not be easily ob- tained. In consequence of this regulation, a court of 'Millar, 421,422. OF THE JUDICIAL DEPAETMENT. 85 common pleas, detached from the aula regis, was erected and was appointed, for the future, to have a fixed and permanent residence. But though the court of common pleas obtained, in this manner, a separate establishment, and was held by separate judges, yet it was deemed in- ferior in rank to the aula regis held by the grand justiciary, and in which the king still continued to sit sometimes in person ; and, for this reason, was considered as subject to its decisions of review.^ There is much reason to believe, that the other remedy,, so natural and easy, for lessening or removing the incon- veniences, which arose from the crowd of business in the aula regis — that of reinstating the inferior jurisdictions in their original degree of respectability — was, by no means, suffered to escape the attention of those who ob- tained the great charter. One of the articles of their demand was — " that the king should promise to appoint justiciaries, constables, sheriffs, and bailiffs of such as knew the law of the land, and were well disposed to ob- serve it." ^ With this demand the king literally complied, and engaged to appoint men only of such character.^ Had this engagement continued and been fulfilled, the subordinate, and, in particular, the county establishments for the administration of justice — for to the county es- tablishments T wivsh to direct your particular atttention — would have gradually regained, as they gradually lost, their original dignity and importance. The uniform and uninterrupted appointment of judges, intelligent, upright, and independent— men, who, in the language of magna charta, "knew and would observe the law of the land" — would, without any farther or more explicit provision, have been amply sufficient to have attracted and secured the confidence of suitors, and, by a necessary consequence, to recover and retain the usefulness and the respectability 1 Millar, 424. 'Bl. 8, art. 42. » Id, 18, art. 4.5. 86 LECTURES ON X.A'^. of the courts. This engagement, however, was neither continued nor fulfilled. In the instrument confirmed by Henry the Third, this, among many other important regu- lations of the magna uharta of John, was unfortunately omitted. The county establishments, from that period to the present moment, have been despised or disregarded in England ; and other establishments, less natural and less convenient to the nation, have been substituted in their place. To the view of those other establishments we now proceed. When we consider the administration of justice in theory, it seems very susceptible of an arrangement in three great divisions. Prosecutions for crimes are easily distinguished from suits concerning property : and, in suits concerning property, the demands of government are as easily distinguished from demands of individuals. On the foundation of this specious theory, a triple divis- ion was made, in England, of the unwieldy jurisdiction accumulated in the aula regis. We have already seen, that " common pleas," or demands of property made by individuals, were detached from that court by an article of the great charter. In the reign of Edward tlie First, a farther division was made of its powers; the court of exchequer was erected to decide in matters regarding the public revenue. The cognizance of crimes was the only division now remaining to the original court. To an alteration, so material, in its jurisdiction and power, an alteration, equally material, in its establishment and name, was added, and the aula regis now subsided into the court of king's bench. This court is still, in its constitution, ambulatory; and may attend the person of the king in whatever part of the kingdom he shall be. The process of this court is in the king's name, and must be returned before him " ubicunque fuerimus in Anglia." i iBl. Com. 41. OF THE JUDICIAL DEPAETMBKT. 87 We now see, clearly and full}', the origin of the three great courts of common law, which, during a series of centuries, have been the ornaments of Westminster hall ; and we now see, clearly and fully, the distinct principles, on which those three courts were separately erected. To the King's Bench was allotted the jurisdiction of offences and crimes : decisions concerning the property of indi- viduals — meum and tuum, as our books express it — were committed to the court of Common Pleas : the enforced collection of the public revenue was intrusted to the court of EXCHEQUBK. I conclude my inquiries respecting the juridical history of England, at a period at which others generally begin theirs. To the jurists of Pennsylvania, this investigation, though minute, concerning the distribution of the powers and the jurisdiction of the aula regis, is deeply interest- ing ; nay, it is of indispensable necessity ; for, by the constitution and laws of Pennsylvania, a jurisdiction, similar to the combined jurisdiction of that court, is re- united in the supreme court of this commonwealth. But along with that reunion, the measures proper for avoiding its inconveniences have been adopted. The supreme court is stationary ; and juridical establishments, highly respectable, are formed in ever;^ county. These, in due course, will become the objects of particular atten- tion. By the historical deduction which we have made, we are now properly prepared 'to examine, bj' a particular survey, the judicial departments of the United States and this commonwealth ; and to estimate, with correctness, the numerous jurisdictions, supreme and subordinate, of Avhich those departments are composed, and upon the qualities ftnd proportions of which, the declining or the flourishing state of those departments, and of everything 88 LECTUKES ON LAW. connected with those departments, must ultimately de- pend. The judicial power of the national government extends — to all cases, in law or equity, arising under the constitu- tion, the laws, or the treaties of the United States ; to all cases affecting public ministers and consuls ; to all cases of admiralty and maritime juiisdiction ; to controversies, to which the United States shall be a party ; to contro- versies between two or more states ; between a state and citizens of another state ; between citizens of different states ; between citizens of the same state, claiming lands under grants of different states ; and between a state, or the citizens thereof, and foreign states, citizens or ^ subjects.^ Besides the supreme court established by the constitu- tion, the judicial power of the United States is, at present, vested in circuit and in district courts. The supreme court has original jurisdiction in all cases, to which a state shall be party, and in all cases affecting public ministers and consuls. In all the other cases before mentioned, it has appellate jurisdiction, both as to law and fact; but with such exceptions, and under such regula- tions, as are made by congress.^ It consists of a chief justice and five associate justices ; and holds annually two 1 Cons. tr. S. art. .3, s. 2. ^ The supreme court of the United States, in the case of Chis)iolm n. Tlie State of Georgia (2 Dall. 419), decided, that under the clause of the constitution which extends the judicial power of the United States to controversies " between a state and citizens of another state," a state, was liable, as defendant, to a suit commenced by such citizens. But by the eleventh article of the amendments to the constitution, it is declared that " the judicial power of the- United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." Vide post, ch. 4. Ed. [This decision was rendered nugatory by the eleventh amendment. See for the doc- trine, Hahn v. La., 134 U. S. 1.] 3 Cons. U. S. art. 3, s. 2. OF THE JUDICIAL DEPARTMENT. 89 sessions at the seat of the national government. One .session commences on the first Monday of February ; the •other, on the firet Monday of August. Four judges are a* ■quorum.^ The judges, both of the supreme and inferior courts, hold their offices during good behavior; and, at stated times, receive, for their services, a compensation, which cannot be diminished during their continuance in office.^ The supreme court has power to issue writs of proliibi- tion to the district courts, when they proceed as courts of admiralty and maritime jurisdiction ; and writs of manda- mus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.* Final judgments and decrees of a circuit court, where the matter in dispute exceeds two thousand dollars, may be re-examined and reversed or affirmed in the supreme court,^ upon a writ of error.^ iLaws, U. S. 1 con. 1 sess. c. 20, s. 1. 2 By an act of congress passed 29th April, 1802, the supreme court is to hold but one session annually, commencing on the first Monday in February. Four of the justices form a quoium. If four shall not attend within ten days after the time appointed for the commencement of the session, the business shall be continued to the next stated session ; but any one or more of the justices may make all necessai^ orders prepara- tory to the hearing, trial, or decision of any case returned to or depend- ing in the court. The August session is abolished ; but one of the justices is directed to attend at the seat of government on the first Monday of August annually, and has power to make all necessary orders in any case returned to or depending in the court, preparatory to the hearing, trial, or decision. Writs and process may be returnable on the first Monday in August, in the same manner as to the February session, and may also bear teste on that day, as though a session of the court ^as holden. Laws, U. S. 7 con. 1 sess. c. 31, s. 1, 2. Ed. 'Cons. U. S. art. 3, s. 1. *Laws, U. S. 1 con. 1 sess. c. 20, s. 13. s Laws, U. S. 1 con. 1 sess. c. .30, s. 22. « See the case of Wiscart et al. i. Dauchy (3 Dall. 321, 327), in which ithe supreme court of the United States decided, that causes of admiralty 90 LECTUEES ON LAW. If the validity of a statute or treaty of the United' States, or of an authority exercised under them, be drawn in question, in any suit in the highest court of law or equity of a state, in which a decision of the suit could be had ; and a decision is against their validity — if the valid- ity of a statute of any state, or of an authority exercised under that state, is, in any suit in such court, drawn in question, as repugnant to the constitution, treaties, or laws of the United States ; and a decision is in favor of their validity — if the construction of any clause of the constitution, of a treaty, of a statute of the United States, or of a commission held under them, is, in any suit in such court, drawn in question ; and a decision is against the title, right, privilege, or exemption, specially set up or claimed by either party under such clause — a final judgment or decree, in all these cases, may, upon a writ of error, be re-examined and affirmed or reversed in the supreme court of the United States.^ The United States are divided into circuits and dis- tricts.^ The districts are, in number, sixteen : one consists of that part of the state of Massachusetts, which lies easterly and maritime jurisdiction and suits in equity, as well as other civil actions, could be removed from the circuit into the supreme court by ' -writ of error only, and not by appeal ; and that therefore nothing vpas i-eraoved tor re-examination but the law. By an act of congress since passed (7 con. 2 sess. c. 93, s. 2), it is provided that an appeal shall be allowed to the supreme court of the United States from final judgments or decrees rendered in the circuit court in cases of equity, of admiralty and maritime jurisdiction, and of prize or no prize ; where the matter in dispute, exclusive of costs, shall exceed the value of two thousand dol- lars. No new evidence, however, can be received in the supreme court on the hearing of the appeal, except in admiralty and prize causes. Ed. ' Laws, U. S. 1 con. 1 sess. c. 20, s. 25. [■^ A detailed statement of the present judicial establishment would be out of place in a work of this nature ; in fact, an exhaustive annotation showing the decisicns and new laws would tend to obscure rather than elucidate the principles.] OF THE JUDICIAL DEPARTMENT. 91 of the state of New Hampshire, and is called Maine dis- trict : one consists of the state of New Hampshire, and is called New Hampshire district: one consists of the re- maining part of the state of Massachusetts, and is called Massachusetts district : one consists of the state of" Rhode Island and Providence Plantations, and is called Rhode Island district : one consists of the state of Con- necticut, and is called Connecticut district : one consists of the state of New York, and is called New York district ; one consists of the state of New Jersey, and is called New Jersey district : one consists of the state of Pennsylvania, and is called Pennsylvania district : one consists of the state of Delaware, and is called Delaware district : one consists of the state of Maryland, and is called Maryland district : one consists of the state of Virginia, and is called Virginia district : one consists of the state of North Carolina, and is called North Carolina district : one con- sists of the state of South Carolina, and is called South Carolina district : one consists of the state of Georgia, and is called Georgia district : ^ one consists of the state of Vermont, and is called Vermont district : ^ one consists of Kentucky, and is called Kentucky district. These districts, except Maine and Kentucky, are divided into three circuits, the eastern, the middle, and the south- ern. The eastern circuit consists of the districts of New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, and Vermont : the middle circuit consists of the districts of New Jersey, Pennsylvania, Delaware, Maryland, and Virginia : the southern circuit consists of the districts of North Carolina, South Carolina, and Georgia.^ In each district, there is a district court, consisting of ' Laws, U. .S. I COM. 1 sess. i;. 20, s. 2. -Id. 1 con. :! so.s.s. c. 12, s. 2. 'Id. 1 con. 1 sess. c. 20, a. 4. 92 LECTURES ON LAW. ■one juclge,^ who resides in the district, and holds four sessions annually.* * In each district of the three circuits, two courts, called circuit fcourts, are annually held. These courts consist ■of any two justices of the supreme court, and of the dis- trict judge of the district, any two of whom constitute a 'quorum.^* Over crimes and offences, committed upon the high :seas, or within the respective districts, and cognizable under the authority of the United States, the district courts have jurisdiction ; provided the punishment ex- ceed not whipping with thirty stripes, a fine of one hun- dred dollars, or imprisonment for six months. From jurisdiction over such crimes or offences, the courts of the several states are excluded.^ The district courts have, in the first instance, exclusive cognizance of all causes of admiralty and maritime juris- 1 Laws U. S. 1 con. sess. c. 20, s. 3. 2 For the alterations which have been made in the distribution of the United States into districts and circuits, and in the sessions of the dis- trict courts, the number of which now varies in different districts, see Laws U. S. 3 con. 1 sess. c. 54 ; 7 con. 1 sess. c. 31 ; 7 con. 2 sess. c. «0. Ed. 5 Laws U. S. 1 con. 1 sess. c. 20, s. 4. * The circuit courts now consist of one of the judges of the supreme <'Ourt and the judge of the district ; either of whom may hold the court. In cases removed from a district to a circuit court by appeal or writ of •error, judgment shall be rendered in conformity to the opinion of the judge of the supreme court. In other cases, if the opinions of the judges shall be opposed, the question respecting which they disagree shall, dur- ing the same term, at the request of either party or their counsel, be ■stated under the direction of the judges, and certified to the supreme •court, by whom it shall be finally decided ; and their decision and order shall be remitted to the circuit court, and be then entered of record, and shall have effect according to the nature of the decision or order. No punishment shall, in any case, be inflicted, when the judges are divided in opinion on the question respecting it. Laws, U. S. 7 con. 1 sess. c 31, s. 4, 5, 6. Ed. 6 Laws U; S. 1 con. 1 sess. c. 20, s. 9. OF THE JUDICIAL DEPARTMENT. 93 ■diction,^ and of seizures under laws of impost, navigation, ■or trade ; provided the seizures be made on tlie high seas, ■or w^ithin their respective districts, on watei's navigable from the sea by vessels of ten or more tons burthen. But the right of a cornmon law remedy is saved to suitors in all cases, in which the common law is competent to give it.^ Of seizures on land, or on waters, other than as above described, and of all suits for penalties and forfeitures incurred under the laws of the United States, the district courts have, likewise, in the first instance, exclusive cognizance. Of all causes, in which an alien sues for a tort only in violation of the law of nations or of a treaty of the United States, the district courts have cognizance, con- current, as the case may be, with the circuit courts, or with the courts of the several states. They have a simi- lar concurrent cognizance of all suits at common law, in which the United States sue, and the matter in dispute, exclusive of costs, amounts to tlie value of one hundred dollars. They have, exclusively of the courts of the several states, jurisdiction of all suits against consuls or vice-consuls, except for offences above the description before mentioned.^ The circuit courts liave concurrent jurisdiction with the district courts of the crimes and offences cognizable in the latter, and they have exclusive cognizance of all other crimes and offences cognizable under the authority of the United States, except where provision is or shall be otherwise made. Thej' have, concurrent with the courts of the several states, original cognizance of all civil suits at common 1 Every district court in the United States possesses all the powers of a court of admiralty, ■whether considered as an instance or as a prize court. 3 Dall. 16. Ed. ^ Laws V. S. 1 con. 1 sess. c. 20, s. 9. ■' Id. ibid. 94 LECTURES ON LAW. law or in equity, -where the matter in dispute, exclusive of costs, exceeds the value of five hundred dollars, and where the United States are plaintiffs, or an alien is a party, or a suit is between a citizen of the state, in which it is brought, and a citizen of another state.' The final decrees and judgments of a district court in civil actions, where the matter in dispute, exclusive of costs, exceeds the value of fifty dollars, may, upon a writ of error, be re-examined, and reversed or affirmed in a circuit court, hold«n in the same district. ^ ^ From the foregoing detail, which was necessary, though not entertaining, we find, that as yet, only three species- of courts are known to the constitution and laws of the United States ; and that even to one of those species no appropriate order of judges is assigned ; for the judges of the circuit courts are drawn together, in opposite direc- tions, from the supreme court and the district. This very uncommon establishment may become the subject of some future remarks. I proceed to take a view of th6 courts of Pennsylvania. The first, which attracts our notice, is " the high court of errors and appeals." This court was constituted by a late law. A court of the same name and of much the same kind was known in Pennsylvania, before the present constitution. This court, as at present established, consists of the judges of the supreme court, of the presidents of the courts of common pleas, and of three other persons,, 1 Laws U. S. 1 con. 1 sess. c. 20, s. 11. 2 i^_ ,,_ 22. ^ By the 21st section of the same act, an appeal to the circuit court was allowed from final decrees in a district court in causes of admiraltif and maritime jurisdiction, where the matter in dispute exceeded the value of three hundred dollars exclusive of costs. By a later act (7 con. 2 sess. c. 9.3, s. 2), it is provided that from all final judgments or decrees in any of the district courts of the United States, an appeal, where the matter in dispute, exclusive of costs, shall exceed the value of fifty dol- lars, shall he allowed to the circuit court for the same district. Ed. or THE JUDICIAL DEPARTMENT. 95 appointed iluring good behavior, and lemovable in the same manner as the judges of the supreme court. Five judges form a quorum. It is empowered to decide on writs of error from the supreme court, and on appeals from the register's courts in the several counties of the commonwealth.! The supreme court has been long known in Pennsyl- vania, though not always by the same name. By consult- ing the records of our laws, we shall find " an act for erecting a provincial court," passed as early as the year one thousand six hundred and eighty-four. It had power to try titles of land, to try all causes civil and criminal, both in law and equity, not determinable in the countj^ courts, and to decide appeals from inferior jurisdictions.^ This law was continued, according to a general regulation in force at that time, from one session of the general assembly to another, till the year one thousand six hundred and ninety. From that year to the year one thousand seven hundred, there is a chasm in the laws of Pennsylvania. To those, who are conversant in the general history of the province, the reasons of this chasm are well known. Ill the year one thousand seven hundred and one, a new act was passed for establishing a provincial court. By this act, the court had ■jurisdiction in- equity by bill and answer, such as is necessary in courts of chancery, and proper in these parts.^ This law was, in the year one thousand seven hundred and five, repealed by the queen in council. In the year one thousand seven hundred and fifteen, another law was passed " for erecting a supreme or pro- vincial court of law and equity." * This experienced the 1 3 Laws Penn. 97, s. 17. " K. O. Book A, p. 71. » R. O. Book A, vol. 1, p. 110. * K. O. Book A, vol. 2, p. 109. 96 LECTUKES ON LAW. fate of the former— it was repealed by the king m council in the year one thousand seven hundred and nineteen. I may be permitted to remark, by the way, that such was the fate of many of the most valuable laws, which were passed in the early periods of Pennsylvania. They well deserve the attention of every one, who wishes to become a master of her juridical liistory. Tliey disclose, in the most striking as well as the most authentic manner,, how soon and how strongly a spirit of jealousy began to operate in the administration of the colonies. Will it be believed, that the benefit of the great palla- dium of liberty — the writ of liabeas corpus — was refused to be imparted to the plantations ? Will it be believed,, that the name of Somers — a name, in Europe, so dear to liberty — stands first in the list of those, by whom the tyrannic refusal was given ? These things ought not to be believed without the most irrefragable testimony : if the most irrefragable testimony of their authenticity can be produced, these things ought to be botli believed and pub- lished. They show how dangerous it is for freedom to depend upon her best frienda for a foreign support. In December one thousand six hundred and ninety-five^ the committee of plantations wrote, to the governor and council of Massachusetts, a letter on the subject of a variety of laws passed by the legislature of that colony. Many of those laws were favorable to libeity ; and, among others of this spirit, there was one cojicerning the ^rit of habeas corpus. With regard to this law, the committee ex- pressed themselves in the following manner, truly remark- able. " Whereas by the act for securing the liberty of the subject, and preventing illegal imprisonments, the writ of habeas corpus is required to be granted, in like manner as is appointed by the statute of 31 Charles II. in England ; which privilege has not as yet been granted in any of his majeety^s plantations : it was not thought fit in his majesty's- OF THE JUDICIAL DEPARTMENT. 91 absence, that the said act should be continued in force ; and, therefore, the same hath been repealed." My Lord Somer» signed the letter ! ^ I return to the supreme court of this common, wealth. By a law, made in the year one thousand seven hundred and twenty-two, and which is still in force, a court of record was established, and styled the supreme court of Pennsyl- vania. To that court power is given to issue writs of liabeas coi-pus, certiorari, and writs of error, and all reme- dial and other writs and processes, in pui'suance of the powers given to it.^ Its judges are authorized to minister- justice to all persons, and exercise the jurisdictions and powers granted by law, as fully and amplj^ as the justices- of the court of king's bench, common pleas, and exchequer, at Westminster, or any of them, can do.^ It was made £u doubt, whether, under the authority of this law, the su- preme court could exercise original jurisdiction, and take cognizance of causes at their commencement. A laWv passed a few years ago, gives it expressly original juris- diction in enumerated cases.* By the constitution of Pennsylvania,^ the jurisdiction of the supreme court shall extend over the state ; and the judges of it shall, by virtue of their ofBces, be justices of oyer and terminer and general jail delivery in the several counties. Besides the powers formerly and usually exercised by it, it has now the powers of a court of chancery so far as relates to the perpetuating of testimony, the obtaining of evidence from places not within the state, and the care of the persons and estates of those, who are non compotes mentis.^ 1 Chal. 74. 2 1 Laws Penn. 179, s. 11. 3 Id. 180, =. 13. * 2 Laws Penn. 472, s. 4, 5. 5 Art. 5, s. 3. ' Cons. Penn. art. 5, s. 6. •08 LECTURES ON LAW. The judges of this court hold their offices during good behavior ; but, for any reasonable cause, which shall not be ground of impeachment, the governor may remove any of them, on the address of two thirds of each branch of the legislature.^ They shall, at stated times, receive, for their services, an adequate compensation, to be fixed by law ; which shall not be diminished during their continuance in office. By a law passed during the present year, the supreme court is established in the same manner, and with the same powers, as it has been heretofore established by the laws of the state, consistently with the provisions contained in the constitution .2 It holds three terms in the year; one, on the first Monday in January; another, on the first Monday in April ; and the third, on the first Monday in ^ September.* By the constitution of Pennsylvania, ^ a court of com- mon pleas, an orphans' court, a register's court, and a court of quarter sessions of the peace are established for each county. Before I consider these jurisdictions separately, it will be proper to premise some observations, equally applicable to them all. Among the dispositions and arrangements of judicial power, the institution of counties has long made a conspic- uous figure. The division of England into counties is generally ascribed to the legislative genius of the great Alfred. His genius was unquestionably equal to the task ; but part of it was performed before his reign. A country so large as some of the kingdoms of the heptarchy could 1 Cons. Penn. art. 5, s. 2. 23 Laws Penn. 92, s. 1. = Id. ibid. * The terms of the supreme coiirt now commence on the first Mondays in March, September, and December. March term continues three weeks ; September term, two weeks ; and December term, four weeks. The first and last days of each term are return days. 5 Laws Penn. 166. Ed. * Art. 5. s, 1. OF THE JUDICIAL DBPARTMElfT. 99 not, according to the policy and the exigencies of the times, enjoy the administration of justice without a division into subordinate districts. Accordingly, in the old laws, before the union of England under Egbert, we find the mention of sheriffs and shires.^ But though Alfred did not com- mence, he undoubtedly extended the county establish- ments of England. Before his reign, the Danes had made extensive settlements in the northern parts of the king- domi During some years after the commencement of his reign, they confined him within very narrow limits, and ravaged the rest according to their savage pleasure. At last, however, this great man, whom so many embarrass- ments surrounded, and who surmounted so many embar- rassments, obliged those, who had viewed him with super- cilious contempt, to acknowledge him as their superior and lord. After his conquest over the Danes, he then settled the boundaries of the counties through every part of Eng- land. In the southern parts of the kingdom, they were, probably, laid out according to the former limits. In the northern parts, which were less fertile and more unculti- vated, they were laid' out on a larger scale. Hence, to this day, we find the largest counties in the north of Eng- land. In every county, justice was administered to the inhabi- tants near their places of residence, without the delay and expense of resorting to Westminster. Each of the counties or shires had, as we are told by Selden, their two chief governors for distributive justice : of these, the sheriff was tlie more ancient and worthy; being, in certain cases, aided by the power of the county. His office was partly judicial and partly ministerial. In the last character, he was the king's servant to execute his writs: in the first, he regulated, the courts of justice with- in the county. The other officer was the coroner, whose 1 SulUv. 245. 7 100 LECTUKBS ON LAW. duty it was to inquire of homicide upon the view, to seize escheats and forfeitures, to receive appeals of felony, and to keep the rolls of criminal proceedings. He was chosen, as was the sheriff, from among the men of the first rank in the county.^ In those times, the county court was surrounded with numerous and respectable attendants : it was considered as the great theatre, on which the justice and the power of the county were displayed. ^ In those times, justice was administered principally in the county establish- ments ; and it was only in cases of uncommon magnitude or difficulty, that recourse was had to that judicial tribu- nal, whose jurisdiction extended over the whole kingdom. In those times, the proceedings and decisions of the courts were simple and unembarrassed^ — an advantage, as a learned writer says,^ which always attends the infancy of laws — an advantage, as I will venture to say, which al- ways attends their perfection. Such have been, and such will be the true character and native consequences of county establishments, properly instituted and properly organized. Let us now trace their origin and their progress in Pennsylvania. In the second session of her legislature, it was enacted, that " all actions of debt, account, slander, and trespass, shall be first tried by the court of the county, in which the cause of action arises."* In a subsequent session, it was constituted a court of equity as well as of law.® Soon afterwards the sphere of the county jurisdiction was en- larged. It was enacted, that trials of titles of lands, actions of debt, account, and slander, and all actions civil 1 Eac. on Gov. 40, 41. " Forum plebeise jnstitise, et tlieatrum cOmitivse potestatis. S])el. Gloss. V. comitatus. « 4 Bl. Com. 407. * R. O. Book A, p. 32. » Id. p. 70. OF THE JUDICIAL DEPAETMBNT. 101 or criminal whatever (excepting treason, murder, man- slaughter, and other enormous crimes) shall be first heard and determined in the proper counties by the respective justices ; and that the county courts shall be held quarter- ly, and oftener, if there be occasion .1 These institutions fell at the chasm of legislation, which I have already mentioned ; but their spirit was afterwards revived, continued, and invigorated. They received, it is true, some checks, similar to those, which were experi- enced by the supreme court. In the year one thousand seven hundred and fourteen, an act was passed for estab- lishing the several courts of common pleas within the pro- vince.^ It met its fate at the same time and in the same manner as the law for establishing the supreme court. By a subsequent law, more fortunate, a court of record, styled the county court of common pleas, was established in every county, with power to hear and determine all pleas and causes, civil, personal, real, and mixed, accord- ing to the laws and constitutions of the province.^ Here appears a plain separation of the civil from the criminal jurisdiction, both of which were, before this time, vested in the county courts. The criminal jurisdiction was, by the same law, transferred to a court instituted at the same time,* and styled "the general quarter sessions of the peace and jail delivery." ^ By the constitution,^ the judges of the courts of com- mon pleas shall hold their offices during good behavior. I am next to consider the establishment and the juris- diction of orphans' courts in Pennsylvania. These are institutions of the last importance to the welfare of the commonwealth. Among the ancients, those who studied and practised 1 M. p. 84. 2 Id. vol. 2, p. 112. 3 1 Laws Penn. 182, s. 21. « See R. O. Book A, vol. 2, p. 90. ' 1 Laws Penn. p. 176, s. 3. « Art. 5, s. 2. 102 LECTURES ON LAW. the sciences of jurisprudence and government with the greatest success, were convinced, and, by their conduct, showed their conviction, that the fate of states depends on the education of youth. History, experience, and philosophy combine in declar- ing — that the best and most happy of countries is that country, which is the most enlightened. " It was a leading principle with our ancestors," says Isocrates in his oration on reforming the government of Athens, " not to limit the education of the citizens to any particular period of life. Great pains were employed upon them during their youth ; and, as they advanced to the years of maturity, they were watched with an atten- tion still more sedulous than before. Their manners were an object of such high concern, that the Areopagus seemed instituted with no other view but to preserve them." 1 It was the business of this court to appoint tutors and governors for the youth ; and to take care that they were educated in a manner corresponding to their situation and circumstances.^ A similar degree of watchfulness and assiduity was bestowed upon education, in other parts of Greece. Epaminondas, we are told, in the last year of his life, said, heard, beheld, and performed the very same things, as at the age in which he received the first principles of his education.^ Nothing, indeed, can be of greater importance, than to conduct our children in the same manner, in which we ought to conduct ourselves. " Custom," says my Lord Bacon, " is the principal magistrate of man's life.* But custom is certainly most perfect, when it beginneth in young years. This we call 1 Gil. Lys. & Isoc. 487. 2 1 pot_ ^^t ]04_ 3 Mont. Sp. L. b. 4, c. 4. P "Studies," says Burke, "become habits of thought."] OF THE JUDICIAL DEPAETMENT. 103 education ; which, in effect, is but an early custom. But if the force of custom, simple and segregate, be great ; the force of custom, copulate and conjoined and colle- giate, is far greater. For there, example teacheth, com- pany comforteth, emulation quickeneth, glory raiseth. Certainly the great multiplication of virtues upon human nature resteth upon societies well ordained and disci- plined." 1 Things are sometimes best displayed by the side of their contraries. It has been the benign aim of patriot legislators to disseminate knowledge: it has been the infernal wish of despots and the minions of despots to extinguish it. The political principles of Mr. Hobbes are well known. Such an abhorrence he contracted for popular government, and the principles of freedom, that he was anxious to see both extirpated from the face of the earth. In order to obtain this consummation, in his per- verted judgment so devoutly to be wished, he recom- mends it to princes to destroy the Greek and Latin authors. " By reading them," says he, " men have, under a false show of liberty, acquired a habit of favoring tumults, and of licentiously controlling the conduct of their sovereigns." ^ In France, during a late reign, a minister was heard to say — " I will put an end to all schools;" and another is said to have declared — " I.am tired with these publications ; if I continue ten years longer in office, I am determined that no books, except the court calendar, shall be printed in Paris." •* But in France, that late reign is now passed. The same savage and tyrannic maxims have, in former times, been avowed in America. But those times are now also passed. It will not, however, be unuseful to turn our eyes back upon them ; and, with the mingled 1 3 Ld. Bac. 357, 358. 2 Lev. P. 2, c. 21. 1 Shaft. Char. 88. » Fr. Eev. 266. 104 LECTUEES ON LAW. emotions of disdain and conscious joy, to trace the striking contrast between the views of government in a past, and those in the present age. In the reign of Charles the Second, the lords of the committee of plantations transmitted to Virginia a series of inquiries concerning the condition of the colony. Among the answers returned by Sir William Berkeley, who was then its governor, we find the following one, too extraordinary to be passed without particular notice. " I thank God, there are no free schools, nor printing ; and, I hope, we shall not have, these hundred years. For learn- ing has brought disobedience, and heresy, and sects into the world ; and printing has divulged them and libels against the best government : God keep us from both ! " i By the court of Charles, this prayer was received most graciously ; and, agreeably to its principle, a succeeding governor was ordered " to allow no person to use a print- ing press on any occasion whatsoever." ^ Very different were the principles, which animated the genius of the immortal Alfred. He considered learning and the sciences as the glory and the felicity of his reign. He founded and endowed schools : difficult as the task was in that unenlightened age, he provided those schools with proper instructors. Still farther to diffuse a taste for knowledge, and to transmit its blessings to posterity, he made a law, obliging all freeholders, possessing two hides of land or upwards, to send their sons to school, and give them a liberal education. By his own example — for he was the most accomplished scholar of his age — by his powerful recommendations of learning — for he 1 Chal. 328. ' Id. 345. [The same inquiry was sent to all of the colonies, and from Connecticut the response was : "One-fourth of the annual rev- enue of the colony is laid out in maintaining free schools for the edu- cation of our children."] OF THE JUDICIAL DEPAETMENT. 105 made it the great road to preferment — he introduced among his people the most ardent pursuits after intellec- tual acquirements. The old bewailed their unhappiness in being ignorant ; some, at a very advanced age, applied themselves to study ; and all took care to procure proper instruction for their children, and their other young rela- tions.^ According to the theory of Plato ^ and the institutions of Lycurgus,^ the care and education of children were taken entirely out of the hands of their parents. The propriety of this regulation I will not, at present, examine. Suffice it to say, that the laws ought to give every possible encouragement and assistance to the education of children ; but particularly of those, who are unfortunately deprived of their parents. We now see the reasons and the importance of establish- ing orphans' courts. The first object of their jurisdiction is the education of orphans : their propertj'' is the second. So early as the second session of the legislature of Pennsylvania, orphans' courts were established in everj- county to inspect the estates, usage, and employment of orphans ; " that care," says the law, " may be taken for those, that are not able to take care for themselves." * Their education is more immediately the object of a sub- sequent law, which was made in the same session.^ " That poor as well as rich may be instructed in commendable learning," it was enacted, " that all persons having chil- dren, and the guardians or trustees of orphans, shall cause them to be instructed in reading and writing ; and to be taught some useful trade or profession ; that the poor may work to live, and the rich, if they become poor, may not want." By a law still in force, orphans' courts appoint guardians » 2 Henry 356. « 4 Anac. 341. » Id. 163. * K. O. Book A, p. 34. » Id. p. 46. 106 LECTURES ON LAW. over such orphans as the court shall judge incapable, ac- cording to the rules of the common law, of choosing guar- dians for themselves ; admit orphans, of the proper age, to choose their own guardians ; and direct the binding of orphans to be apprentices to trades or other employments. But it is provided, that no orphan shall be bound an ap- prentice to any person, or be placed under the guardian- ship of any person, whose religious persuasion is different from that of the orphan's parents.^ You will probably be surprised, that the regulations known to our laws for the education of orphans here close. You have reason for your suiprise. Those regulations are, indeed, defective. To parental affection the care of educa- tion maj^, in most instances, be safely intrusted. But in no other principle ought the laws to repose an implicit confidence, concerning an object of the greatest magnitude, immediately to orphans, and eventually to the public. In Sparta, one of the most respectable members of the state was placed at the head of all the children. Would not some similar institution be eligible with regard to such of them as are deprived of their parents ? The jurisdiction of the orphans' courts, as it respects the property of orphans, will be discussed with more pro- priety, when we come to the second great division of the law — that, which relates to things. By the constitution of Pennsylvania,^ the judges of the court of common pleas of each county compose its orphans' court. I proceed to the consideration of the register's court. In England, the probate of wills and the granting of letters of administration belong to the jurisdiction of the ecclesiastical courts. In Pennsylvania, this jurisdiction is turned into a very different channel. In the first session of the legislature of Pennsylvania, a 1 1 Laws Penn. 101, s. 7, 102, s. 12. 2 Art. 5, s. 7. OF THE JUDICIAL DEPAETMENT. 107 registry was established for wills, for letters of adminis- tration, and for the names of guardians and executors.^ A law passed in the year one thousand seven hundred and five directed, that an officer, called register general, should be appointed for the probate of wills, and granting letters of administration. He was directed to keep his office at Philadelphia, and to constitute a deputy in each county of the province. The deputies were empowered to take probates and grant letters of administration, as amply as the register general himself could do. A will proved, or letters of administration granted, in any one county, superseded the necessity of another probate or other letters of administration in any other county.^ When objections were made, or caveats entered against the proving of any will, or granting letters of administra- tion ; and when there was occasion to' take the . final ac- counts of executors or administrators, or to make distribu- tion of decedents' estates, the register general and his deputies were respectively obliged to call to their assist- ance two or more of the justices of the court of common pleas, who were empowered and required to give their as- sistance, accordingly, to do all judicial acts concerning the matters before mentioned. This was the register's court.^ The office of register general is now abolished ; and, by the constitution, a register's ofiice for the probate of wills and granting letters of administration shall be kept in each county.* The register of wills, together with the judges of the court of common pleas, or any two of them, compose the register's court.^ The court of quarter sessions of the peace is the last of 1 1 Laws Penn. 56, a. 8. "^ Cons. Penn. art. 5, s. 11. 3 R O. Book A, vol. 2, p. 43. * Id. art. 5, s. 7. ' E. O. Book A, p. 18. 108 LECTUBES ON LAW. those courts, which, by the constitution of Pennsylvania, form the juridical establishment for every county in the commonwealth. In England, the general or quarter sessions of the peace is a court of record held, in every county, once in every quarter of the year. It is held before two or more justices of the peace, for the execution of that authority, which is conferred on them by the commission of the peace, and a great variety of acts of parliament. By the statute of 34 Ed. III. c. 1, the court of general quarter sessions have authority to hear and determine all felonies and trespasses whatever done in the county in which they sit. But they seldom try any greater offences than small felonies ; remitting crimes of a heinous nature to the assizes, for a more public and solemn trial and de- cision. There are many offences, which ought to be pros- ecuted in the quarter sessions, as belonging particularly to the jurisdiction of that court. Of this kind are the smaller misdemeanors, not amounting "to felony; such as offences relating to the highways, taverns, vagrants, and apprentices. It has cognizance also of controversies re- lating to the settlement and provision for the poor, and orders for their removal. It cannot try any newly-created offence, without an express authority given by the statute, which creates it.' In Pennsylvania, the courts of quarter sessions of the peace are formed upon the model, and exercise jurisdiction according to the practice of the courts of the same denom- ination in England. In one important particular, liowever, there is a very material difference between them. The courts of quarter sessions in England are composed of the justices of the peace, who hold their commissions only dur- ing the pleasure of the crown : those in Pennsylvania are 1 Wood. Ins. 499. i Bl. Com. 268. OF THE JUDICIAL DEPARTMENT. 109 composed of the judges of the court of common pleas, who hold their commissions during their good behavior.^ Thus much concerning the court of quarter sessions. In each county, and in such convenient districts as are directed by law, the governor of Pennsylvania appoints a Competent number of justices of the peace.''' To the common law, the conservation of the peace has always been an object of the most particular attention and regard. Long before the institution of justices of the peace was known, many officers were, ex officio, or by election or by particular appointment, guardians of the public tranquillity — conservatores pacis.^ When quarrels suddenly arise — when violence is com- mitted — when riots and tumults are likely to ensue, it is vain to wait for the interposition of the ordinary courts of justice. That cannot be obtained soon enough for pre- venting or suppressing the disorders. It is highly im- portant, therefore, that men of character and influence, to whom, upon any emergency, application may be easily made, should be invested with sufficient power to arrest disorderly persons, to confine them, and to preserve or restore the quiet of the country. The peace, in the most extensive sense of the term, com- prehends the whole of the criminal law. " Against the peace," all crimes are laid to be committed. Whoever, therefore, had authority to take cognizance of crimes was, from the nature of his office, considered as a conservator of the peace. The king himself was styled its great con- servator through all his dominions. His judges and his ministers of justice were also official conservators of the peace. Others were conservatoi-s by tenure or prescrip- tion. Others, again, were elected in the full county court, in pursuance of a writ directed to the sheriff. Be- 1 Cons. Penn. art. 5, ss. 7, 2. 2 Cons. Penn. art. 5, s. 10. » Millar, 433. 110 LECTURES ON LAW. sides all these, extraordinary conservators of the peace were appointed by commissions from the king, as oc- casion required. They were to continue, says my Lord Bacon, for the term of their lives, or at the king's pleasure. For this service, adds the same great authority, choice was made of the best men of calling in the countj', and but few in the shire. They might bind any man to keep the peace, and be of the good behavior ; and they might send for the party, directing their warrant to the sheriff or con- stable to arrest the party and bring him before them. This it was usual to do, when complaint was made, upon oath, by any one, that he stood in fear of another ; or when the conservator himself saw the disposition of any man inclined to a breach of the peace, or to misbehave himself in some outrageous manner. In such cases, the conservator might, by his own discretion, send for such a fellow, and, as he should see cause, oblige him to find sureties for the peace, or for his good behavior. If he re- fused to find them, a commitment to jail would be the unavoidable consequence. Those, who were conservators of the peace by virtue of their offices, still retain the character and power : those, who became so by election or appointment, are superseded by the justices of the peace. i Of this institution, says my Lord Coke,2 it is such a form of subordinate government for the tranquillity and quiet of the realm, as no part of the Christian world hath ; provided it be duly executed. The power of the justices of the peace arises from two different sources — their commission, and acts of par- liament, which have created the objects of their juris- diction. By his commission, every justice is appointed a con- • 4 Ld. Bac. 59, 99. 1 Bl. Com. 349. 2 Beev. 122. 2 4 Ins. 170. OP THE JTIDICIAL DEPARTMENT. Ill servator of the peace, and is vested with a separate power to suppress riots and affrays, to take securities for the peace or good behavior ; and for defect of sureties may c»mmit to the common jail or house of correction. For treason, felony, or breach of the peace, he may commit even a fellow-justice .^ The powers, which, by acts of parliament, have been con- ferred, from time to time, upon one, two, or more justices of the peace, are accumulated to such a degree as to forma jurisdiction of immense variety and importance. They are so many and so great that, as Sir William Blackstone observes,^ the country is greatly obliged to any worthy magistrate, who, without sinister views of his own, will engage in this troublesome service. For this reason, he is protected, by many statutes, in the honest discharge of his ofBce ; and, for any unintentional error in his practice, great indulgence is shown to him in the courts of law. On the other hand, tyrannical abuses of his office are punished with the merited severity ; and all persons, who recover a verdict against him, for a wilful or malicious injury, are entitled to double costs. In England, a justice of the peace holds his office only during the pleasure of the king : by the constitution of Pennsylvania, he holds it during his good behavior. He may be removed on conviction of misbehavior in office, or of anj' infamous crime, or on the address of both houses of the legislature.^ The presidents of the courts of common pleas, within their circuits, and the other judges, within their several counties, are justices, of the peace, so far as relates to criminal matters.* This distinction, suggested by the constitution, brings into our view a very important branch of the power of a 1 Wood, Ins. 80, s 1 Bl. Com. 354. ' Cons. Penn. art. 5, s. 10. * Id. art. 5 s. 9. 112 LECTUEES ON LAW. justice of the peace. He possesses civil as well as crim- inal jurisdiction in Pennsylvania, and decides concerning property as well as concerning offences. This branch of his power deserves a particular consideration. ^ The easy, the regular, and the expeditious administration of justice has, in every good government, been an object of particular attention and care. To the attainment of an object so interesting, the distribution of the juridical powers among convenient districts is highly conducive. Such dis- tribution, therefore, has, in many states, been made with a degree of precision suited to its importance. Every citizen should be always under the eye and under the protection of the law and of its officers : each part of the juridical system should give and receive reciprocally an impulse in the direction of the whole. In Athens, there was a grade of magistrates, who, in the several districts, had jurisdiction of suits, when the sum in controversy did not exceed ten drachms. They had cognizance also of actions of assault and battery.^ Arbitrators likewise acted a very considerable part on the juridical theatre of Athens. There were two kinds of them. One kind consisted of those, who were drawn by lot to determine controversies, in their own tribe, concern- ing demands, which exceeded ten drachms in value. Their sentence was not final ; for if either of the contend- ing parties thought himself injured by it, he might appeal, for redress, to a superior court of justice. ^ Arbitrators of the other kind were such as the parties themselves chose to determine the controversy between them. From the determination of these arbitrators, the law permitted no appeal. But they took an oath to give their sentence without partiality.^ We have seen and traced the importance of the county 1 Gil. Lys. & Isoc. 489. 1 Pot. Ant. 122. » 1 Pot. Ant. 122. ' 1 Pot. Ant. 123. OF THE JUDICIAL DEPARTMENT. 113 establishments. But counties are too extensive for their inhabitants to meet on every occasion. Hence the pro- priety of inferior divisions. Among the Saxons, there was a magistrate called the hundredary, who presided over that division of a shire which was called a hundred. This magistrate was known to the ancient Germans, as we find, in Tacitus,' an express reference made to his jurisdiction. The hundredary was, in virtue of his office, empowered to appoint the times and places for the meetings of the hundred court ; to preside in those meetings ; and to carry the sentences of the court into full execution. All the members within the hundred were originally members of the hundred court, and obliged, under severe penalties, to attend. This, however, was dis- covered, by experience, to be inconvenient ; and, therefore, the court was new modelled by a law of the great Alfred. It was reduced to the hundredary or his bailiff, and twelve of the hundred ; and these twelve were sworn, neither to condemn the innocent, nor to acquit the guilty. It was a mixed court, possessing both civil and criminal jurisdic- tion. Many petty causes came before it. Its proceedings were simple and summary : but if any one thought himself aggrieved by its decision, he had the right of appealing to a superior tribunal. In this court also, sales of land, and other important transactions between members of the same hundred were published and confirmed.^ We have seen, that, in Pennsylvania, a very early atten- tion was given to the respectable establishment of county courts. In the same session, which was the second after the settlement of the province, attention was also given to districts more circumscribed. It was enacted, that, in every precinct, three persons should be chosen yearly as peacemakers in that precinct. That arbitrations might be as valid as the judgments of courts, it was directed, 1 De mor. Ger. c. 12, » Bac. on Gov. 42, 43. 2 Henry, 241, 242. 114 LECTURES ON LAW. that the parties should sign a reference of the matter in controversy to the peacemakers so chosen. This refer- ence being ratified by the county court, the award of the peacemakers was as conclusive as a judgment ; and Avas registered in court in the same manner as other judgments.' A farther regulation was made, also in the same session, that speedy justice might be administered to the poor, and in matters of small value. Debts under forty shillings were ordered to be heard and determined, upon sufficient evidence, by any two justices of the peace of that county, in which the cause arose. The justices were directed to re- port their judgment to the next county court. This judg- ment, if approved by the court, was to be recorded as good and binding.^ Thus matters stood with regard to small debts, before the chasm of legislation, which has been re- peatedly mentioned. In the year one thousand seven hundred and five, a law was made, empowering any one justice of the peace to take cognizance of debts under the sum of forty shillings. His judgment concerning them is declared to be final and con- clusive, and without appeal.^ Tliis law was repealed, but its principle -was confirmed by another, made ten years afterwards."* Such is the law still with regard to debts under the sum of forty shillings. . By a law made in the year one thousand seven hundred and forty-five, the jurisdiction of a single justice of the peace was extended, from sums under forty shillings, to sums not exceeding five pounds. But with regard to the exercise of the extended jurisdiction, two very salutary precautions are used. At the request of the parties, ref- erees, named by them and approved by the justice, shall hear and examine the cause. Upon their return, the jus- tice shall give judgment. In all cases, except those de- 1 R. O. Book A, p. 29. " Id. p. 34. » Id. vol. 1, p. 154. 4 1 Laws Penn. 113, 114. OF THE JUDICIAL DEPARTMENT. 115 iermined on the return of referees, an appeal lies from the judgment of the justice to the next court of common pleas. Upon an appeal made, the justice shall send a transcript of his judgment to the prothonotary of the court, which has the appellate jurisdiction of the cause.^ Since the revolution,^ the jurisdiction of a single justice is carried as high as debts not exceeding the sum of ten pounds. From this historical deduction it is natural to observe, that the civil jurisdiction of justices of the peace seems to Iiave been a growing favorite with the legislature of Pennsylvania. It was introduced, at first, with apparent hesitation and reserve : it was confined to sums under forty sliillings : it was intrusted to two magistrates, not to one : the judgment even of two magistrates was not Ijinding till it was approved by the county court. The same jurisdiction was afterwards intrusted to a single magistrate conclusively and without appeal. The juris- diction of a single magistrate has been since extended from two to five, and from five to ten pounds : with the two precautions, indeed, of which I have already taken notice. It may be observed, and the observation certainly has weight, that experience, the best test of things, must unquestionably have witnessed in favor of this jurisdic- tion; otherwise it would not, in this gradually progres- sive manner, have been intrusted and extended. But the weight of tliis observation ought to be compared with that of another, which is found in the opposite scale. We have seen who are to exercise this jurisdiction : let us now see upon whom it is to be exercised — " upon the poorer sort of people," says the law, " who are unable to bear the expenses arising by the common method of ^ 1 Laws Penn. 305, s. 1 ; 307, ». 7, 8. ^ 2 Laws Penn. 304. 8 116 LECTURES ON LA"W. prosecution." ^ Let us suppose it possible, that a magis- trate, in the exercise of his final and conclusive jurisdic- tion, may be guilty of gross impartiality or wilful injustice ; how is redress to be obtained by the unhappy sufferer- under his injustice or partiality ? Only by a prosecution against him. But the unhappy sufferer appeared or was brought before him, only because he was unable to bear the expense of a common prosecution. Would tlie pros- ecution of a magistrate, clothed with authority, and here- tofore answering before his associates in office — would such a prosecution be less expensive ? Would he, who was unable to bear the former, be strengthened in such a manner as to support the burthen of the latter ? That the oppressed have suffered in silence, is no proof that the oppressed have not suffered. Before the establishment of the present constitution, this was, in Pennsylvania, a subject of well founded alarm. One-half, probably, of the personal property, which, in this commonwealth, becomes, during the revolution of a year, the subject of judicial decision, is withdrawn from the trial by jury, and committed to the summary and solitary determinations of the justices of the peace. Be- fore the establishment of the present constitution, the single magistrates, on whom this jurisdiction was con- ferred, were not appointed by any respectable and respon- sible officer, nor chosen by any considerable part of the community, or at stated and well-known times : they were elected in a corner, as occasion offered, or contrivance planned. The causes, which came before a justice chosen, and anxious to be again chosen, in this manner, were frequently suits between a party, on one side, who would have a vote at his succeeding election, and a party, on the other side, who would be entitled to no such vote. The poor and friendless part of the community — those, wh» 1 1 Laws Penn. 304, 305. OF THE JUDICIAL DEPAETMEKT. 117 were soonest ruined by oppression — those, who were least able to struggle against it — were the part selected to be delivered over, bound hand and foot, to magistrates pos- sessing such powers, and possessing them by such means, and in such a manner. Surely, this was a subject of well- founded alarm. The cause of alarm is removed by th^ salutary pro- visions, which we find in the present constitution of the commonwealth. The justices of the peace are appointed by the governor, who, by the citizens of the common- wealth, is himself elected, and who, to the citizens of the commonwealth, is himself responsible. The justices of the peace are appointed during good behavior ; and can no longer be seduced, by a dependent situation, to dis- grace themselves and their offices by sinister adjudica- tions. Farther ; they are habitually controlled by the judges of the court of common pleas. Those judges have, within their respective counties, the like powers with the judges of the supreme court, to issue writs of certiorari to the justices of the peace, and to cause their proceedings to be brought before them, and the like right and justice to be done.i But though the cause of alarm be now removed, the cause of considerate circumspection still subsists ; for it is still true, that the property decided by justices of the peace is property withdrawn from a trial by jury. The constitution suggests, indeed, that those magistrates are to exercise a civil jurisdiction ; but the terms, on which, and the extent, to which that jurisdiction is to be exer- cised, are left, as is proper, to be marked and ascertained by the wisdom and the experience of the legislature. Perhaps the distant view which I have taken of the hundred courts, ma}^ not have been altogether impertinent to the present subject. Perhaps it will not be impracti- 1 Cons. Penn. art. 5, s. 8. 118 LECTtTEBS ON LAW. cable, after some time, to introduce them into Pennsyl- vania, modified, indeed, but with modifications not destruc- tive of their principle. Such a tribunal should not be considered as a fanciful alteration, or a wild experiment ; it ought rather to be deemed a close adherence to the wisdom of the ancient plan, concerted by the great Alfred, and to the spirit of his excellent and venerable institu. tions. To an object of this kind, the legislature is fully competent ; for the constitution^ empowers it to establish courts from time to time. I have now made a tour through the courts of the United States, and through a number of the courts of Pennsylvania. Perhaps I ought here to make an apology for the degree of minuteness, with which I have surveyed and described them. Let me apologize by reciting an incident, which I remember to have heard in my younger years. , From the castle of Edinburgh, in Scotland, the pros- pect is uncommonly rich, extensive, and diversified. A young gentleman, born and educated at no very consid- erable distance from it, set out on his travels through Europe, with a view to notice attentively everything, which he should find most worthy of his remark. When he was at Rome, the subject of exquisite prospects be- came, one day, the topic of conversation in a company of literari, to whom he had been introduced. Among others, that from the castle of Edinburgh was mentioned ; and to our young traveller a reference was naturally made for a minute description of its different parts and beauties. They expressed themselves happy in so fine an opportu- nity of learning every particular concerning that, of which vague and general accounts had so much excited their admiration. "With blushes, he was obliged to disclose the fact — that though he had resided, from his birth, near an ^ Art. 5, s. 1. OF THE JUDICIAL DEPAKTMENT. 119 object, which so well deserved to be known, yet he had never bestowed upon it the least share of attention, and was, therefore, totally unqualified to gratify the company by describing it. A profound silence was observed. It was not lost upon the young traveller. He returned im- mediately to Scotland, and acquired the knowledge of what was worthy to be known at home, before he went farther abroad in search of what was remarkable in foreign countries. The institutions of other nations and of other times merit, most unquestionably, our perusal and our study. The travels of a young Anacharsis, in which the govern- ments and laws of Sparta and of Athens are so beautifully delineated, richly deserve to be read and admired. But to us, the governments, and laws, and institutions of the United States and of Pennsylvania ought to be the con- stant standard, with which we compare those of every other country. How can we compare them with a standard, which is unknown ? Trusting, therefore, that the interesting nature of the things which I describe will compensate for my minute- ness and for my many imperfections in describing them, I proceed to give an account of some other jurisdictions known to the constitution and laws of the United States and of this commonwealth. Circuit courts form a part, and a very valuable part, of our juridical system in Pennsylvania. These are of two kinds — courts of nisi prius, which try issues joined in civil causes — courts of oyer and terminer and general gaol delivery, which hear and determine criminal causes. The courts of nisi prius are derived from the supreme court ; and act as its auxiliaries in the exercise of its very important jurisdiction. They decide, in the several counties, all questions of fact, which arise in civil causes depending in the supreme court. They are called courts 120 LECTURES OX LAW. of niai prius from the following circumstance — The causes commenced in the courts of Westminster Hall are, by the course of those courts, appointed to be tried at their bar, by a jury returned from the county, in which the cause of action arises. But in the writ, enjoining the attendance of the jury, there is this proviso — nisi prius justitiarii ad assisas capiendas venerint — unless, before the day prefixed, the judges of assize come into the county in question. This they do : the issue joined in the cause is tried in the proper county : the verdict is taken, and re- turned to the court above, on the day when the jury would otherwise have been obliged to appear and try it at bar.' By this means, much trouble and expense are saved to the parties, the jury, and the witnesses.^ By this wise arrangement, the investigation of the facts — a niatter frequently of the greatest consequence even in civil causes, is carried on in the county, sometimes in the very neighborhood, in which the dispute arose ; while ques- tions of law are left to be considered by a court, which, from its permanent situation, is better qualified for decid- ing points of difficulty and importance. The courts of nisi prius are held between the terms of the supreme court, at such times as the judges think most convenient for the ^ people.* If it . is highly expedient and convenient, that civil actions should be tried in the county, in which the causes of action arose ; it is much more so, that criminal prosecutions should be tried in the county, in which the crimes were committed. A crime can seldom be proved in any other manner than by oral testimony. But of all the 1 4 Ld. Bac. 64. ^ 3 g]. Com. 59. ' 3 Laws Peim. 92, s., 1. ' Courts of nisi prius are now held only in the county of Philadelphia. In the other counties of the state, they have been superseded by courts, styled " circuit courts," established by an act of assembly passed in the year one thousand seven hundred and ninety-nine. (4 Laws Penn. .362.) OF THE JUDICIAL DEPAETMENT. 121 modes of proof, that which requires the attendance of witnesses from a great distance, is necessarily the most burthensome and expensive. In another view, too, it is very important, that every crime should be tried and every criminal should be punished near the place, where the guilt was contracted. One great design of punish- ment is to deter others from imitating the conduct, for which it is inflicted. This design is most effectually accomplished, when the same persons, who have seen the law violated, are witnesses also of the dismal conse- quences, by which its violation is unavoidably suc- ceeded. In England, crimes are generally tried before judges, who sit by virtue of two commissions from the crown. One is a commission of oyer and. terminer : the other is a commission of general gaol delivery. The first is directed to the judges of the circuits, and to many others of tlie best account within the circuits, as we are informed l)y my Lord Bacon. By this commission, they are autho- rized to hear and determine all treasons, felonies, and misdemeanors. But this commission gives them no power to proceed upon any other indictments than those found before themselves. The second commission is di- rected only to the judges themselves, and the clerk of the assize associate. This commission empowers them to try and deliver every prisoner in the gaol, for whatever offence he may have been committed, or before whatever judges he may have been indicted : but, by this commis- sion, they have authority only over those who are pris- oners in the gaol.^ By the law of the land, says my Lord Coke,^ this com- mission was instituted, that men might not be detained a long time in prison ; but might receive full and speedy justice. 1 4 Ld. Bac. 61. •>■ i Ins. 168. 122 LECTURES ON LAW. Commissions of oyer and terminer are either general, or they are particular, in respect of the persons, of th& offences, or of the places where the offences are com- mitted.i Sometimes, upon urgent occasions, the king issues a special or extraordinary commission of oyer and terminer and gaol delivery, confined to those offences, which demand immediate inquiry and punishment. On these, the course of proceeding is the same as on ordinary and general commissions.^ The constitution of Pennsylvania declares^ that no commission of oyer and terminer or goal delivery shall be issued. This power is expressly excepted out of the general powers of government. The powers granted, in England, by those commissions, are, in this common- wealth, placed much better for the security and advantage of the citizens. The judges of the supreme court are, by virtue of their ofBces, justices of oyer and terminer and general goal delivery in the several counties of the state. The judges of the court of common pleas, in each county,, are, in the same manner, justices of oyer and terminer and general goal delivery for the trial of capital and other offences in such county.* We have already seen that all those judges hold their offices during their good behavior. The judges, both of the supreme and inferior courts of the United States, hold their offices by the same tenure. The important nature of this difference between the situation of those, who exer- cise criminal jurisdiction in England, and that of those, who exercise it in the United States and in Pennsylvania, was fully shown in a former lecture,^ when I was engaged in drawing a parallel between the government of the- United States and that of Great Britain. 1 4 Ins. 162, 163. ^ 4 31 cq^j 267. a Art. 9, s. 15, 26. ■• Cons. Penn. art. 5, s. 3, 5.. fi Ante, vol. 1, p. 418. OF THE JUDICIAL DEPARTMENT. 123 You have frequently heard of the distinction between law and equity, of courts of equity, and of equitable juris- diction and powers. Though no court of equity subsists separately in the United States or in Pennsylvania, yet this subject demands your closest attention. It occupies an important station in the science of law.^ By Aristotle, equity is thus defined — " the correction of that, in which the law, is defective, by being too general." ^ In making laws, it is impossible to specify or to foresee every case : it is, therefore, necessary, that, in interpreting them, those cases should be excepted, which the legislator himself, had he foreseen them, would have specified and excepted. Such interpretation, however, ought to be made with the greatest circumspection. By indulging it rashly, the judges would become the arbiters, instead of being the ministers of the laws. It is not to be used, unless where the strongest and rnost convincing reasons appear for using it. A strong reason for using it is drawn from the spirit of the law, or the motive which prevailed on the legislature to make it. When equity is taken in this sense, every court of law is also a court of equity. When equity is taken in this sense — and, applied to the interpretation of law, this is its genuine meaning — it is an expression synonymous to true and sound construction.* Terms, and the relative positions of terms, are fre- quently too apt to mislead us. When we find a court of [' The abolition of the distinction between forms of action and between courts of law and chancery is one of the main objects in modem reforms in procedure,] ■' Gro. 366. ' 3 Bl. Com. 429, [The following discussion of the distinction be- tween law and equity is one of the clearest and most interesting to be found.] 124 LECTUKES ON LA"W. law and a court of gquity placed in contradistinction to each other, how natural is it to conclude, that the former decides without equity, and that the latter decides with- out law. Such a conclusion, however, is greatly errone- ous. It has, indeed, been said, concerning a court of equity, that it determines by the spirit, and not by the letter of a rule. But ought not this to be said concerning a court of law likewise ? Is not each equally bound — does not each profess itself to be equally bound — to explain the law according to the intention of those, who made it ? In the interpretation of laws, whether strictly or liberally, there is not a single maxim, which is not adopted, in the same manner, and with the same force, by both courts. Hitherto, then, we iind no difference between a court of law and a court of equity. It has been supposed, that it is the peculiar and exclu- sive business of a court of equity to take cognizance of frauds, and accidents, and trusts. One kind of trusts, in- deed — a technical,, a useless, and a mischievous kind, as I shall show in the proper place — a trust created by the limitation of a second use — has been forced into the courts of equity, by the narrowness of the courts of law. But of other trusts, the courts of law, take full and unreserved cognizance ; particularly the very important and extensive trust of money received by one to the use of another. An action, founded on this trust, has often been compared to a bill in equity, on account of its useful and salutary in- fluence.' For accidents, too, remedy is found in a court of law : for the loss of deeds ; for mistakes in payments, receipts, and accounts ; for the destruction of records ; and for a variety of other contingencies. For relief from [1 The fiction by which the wrong-doer was by law transfoi-med into a trustee, and tlie action of assumpsit for money had and received, is here referred to. See Stanton v. Rastol, 2 Term R. 366.] OF THE JUDICIAL DEPARTMENT. 126 'Other accidents, which might be specified, application to a court of law, we own, is vain ; but application to a court of equity is vain also. With regard to frauds, they are as much the objects of cognizance and resentment in the courts of law, as they are in the courts of equity : a fraud in obtaining a devise of lands is always sent out of chancery to be determined at law.^ Hitherto, again, we find no difference between a court of law and a court of equity. A court of equity has been represented as bound by no precedents or rules, but as proceeding arbitrarily, accord- ing to the sentiments of the chancellor, arising from the circumstances of every particular case. But, in truth, precedents and rules govern as much in chancery as they govern in courts of law. Decrees are often founded on no other principle, than a reverence for a series of former concurring determinations. Hitherto, still, again, we find no difference between a court of equity and a court of law. Tlie rules of property, the rules of interpretation, and the rules of evidence are, in both, the same. The systems of jurisprudence in both are systems equally labored and artificial, and founded equally on the same principles of justice and positive law. Let it be observed, farther, that the distinction between law and equity, as administered in separate courts, is not known at present, nor seems to have been known at anj^ former period, in any country, excepting England, and tliose of her colonies, who, in this instance, have imitated tlie practice of England. Even in England, the aula regis, anciently, as we have seen, a court of supreme jurisdiction over the whole kingdom, administered equal justice, according to the rules of equity as well as of law. In none of our very ancient authors, such as Glanvil, Bracton, Fleta, and Britton, do we find the remotest 1 3 Bl. Com. 431. 126 LECTURES ON LAW. reference or allusion to the equitable jurisdiction in the court of chancery. When the aula regis, become un- wieldy and cumbersome, was divided into a number of distinct courts, a court of equity, existing separately from a court of law, did not, by any means, enter into the original plan of partition.^ Whence then the origin and progress of this distinct and independent equitable jurisdiction, which, in England, has become so very extensive and important ? In what material or essential points does it differ from a jurisdic- tion exercised according to the rules and principles of law? These questions merit full and satisfactory answers. In very early times, the chancellor of England was nothing more than an officer merely ministerial. He was the king's secretary. In this character, he had the sole charge of writing the king's lettere. In the same charac- ter, he acquired the sole power of issuing the king's writs.^ These writs were necessary, not only to bring the defendant into court, but also to give the court juris- diction over the cause. For, soon after the conquest, it became a general rule, that no plea could be held in the king's court without the king's writ.^ As causes and the kinds of causes multiplied, the chancellor was more and more employed in issuing writs, and in framing new writs, directed to the courts of common law, in order to empower them to give remedy in cases, in which none could before be obtained. On this subject we find an early legislative provision* " When, in one case, a writ was found in the chancery ; and, in a like case falling under the same right and re- quiring the like remedy, no precedent of a writ' could be produced, the clerks in chancery were directed to form a new one. If they could not agree, it was adjourned to I 3 Bl. Com. 49. ^ Millar, 469. " 1 Reev. CO. * St. 13 Edw. 1, c. 24. OF THE JtTDICIAL DEPARTMENT. 127 the next parliament, that a writ might be framed by the consent of the learned in the law." This provision was made, " lest it should happen that the court of the king :should be deficient in doing justice to the suitors." Here we see the chancery fully established as the great officina hrevium. These writs, however, were all intended to be returnable in the coui'ts of justice. At this time, the ■chancery itself was not considered as a court : it is al- Avays mentioned as an office merely.^ In the reign of Richard the second, the provision, whicli Ave have just now read, was applied to a purpose, unfore- seen and unexpected. Uses of land — a species, not of property, but of an artificial and mj'^sterious claim to the advantages of property, which I shall hereafter consider minutely — began, about that time, to be introduced. The establishment of them was, to the clergy, a lucrative and a favorite object : for it would have eluded the statutes of mortmain. To accomplish this object, John Waltham, the bishop of Salisbury, and at that time chancellor, by a strained interpretation of the law, devised the writ of subpoena — the powerful instrument of chancery jurisdic- tion — and made it returnable before himself in chancery, in order to oblige a feoffee to uses to account for the prof- its of the land.^ Successful in assuming the jurisdiction of one case, the chancellor afterwards extended it to others; and, in the time of Edward the Fourth, the pro- cess by subpoena was become the daily practice of the court. Such was the origin of the equitable jurisdiction of chancery. The description which we have given of courts of equity and courts of law, and of equitable and legal juris- dictions, is conformable to the practice and proceedings of the court of chancery and of the courts of common law in England, at present, and during the last hundred 1 1 Eeev. 43. 2 Millar, 475. 3 Bl, Com. 51. 128 LECTURES ON LAW. years, or the greatest part of them. But this description cannot, with propriety, be applied to the practice and pro- ceedings of those courts at periods more remote : in those remote periods, a court of equity was considered and acted as possessing a power altogether discretionary, " Equity," says Mr. Selden,i « jg a roguish thing. For law we have a measure : know what to trust to. Equity is according to the conscience of him that is chancellor, and as that is larger or narrower, so is equity. It is all one as if they should make the standard of measure a chancellor's foot. What an uncertain measure would this be ! One chancellor has a long foot : another, a short foot ; a third, an indifferent foot. 'Tis the same thing in the chancellor's conscience." Similar, though not ex- pressed, perhaps, in a similar manner, were the sentiments of the principal lawyers of that age — of Spelman, of Coke, of Lambard, and even of the great Bacon,^ who himself held the office of chancellor, and who, of all others, ap- pears to have been the best qualified to understand the nature of that office. This, indeed, was in the infancy, as it may be called, of the court of chancery, before its jurisdiction was settled, and when the chancellors, partly from their ignorance of law, and partly from ambition and lust of power, had arrogated to themselves such unlimited authority, as has since been totally disclaimed by their successors. In the remote periods, which we have mentioned, while a court of equity acted and was considered as possessing powers altogether discretionary, the courts of law, on the other hand, acted upon principles, which were both nar- row and unjust.^ If the judges of the courts of common law had been as liberal then as they have been since, the court of chancery would never have swelled to its pres- ent enormous bulk. " I have always thought," said the ' Table talk. = Millar, 477. 3 Bl. Com. 433. ^ 3 Bl. Com. 433- OF THE JUDICIAL DEPAETMENT. 129 very able and learned Judge,^ whose opinion I now quote, " that formerly there was too confined a way of thinking in the judges of the courts of common law ; and that courts of equity have risen, because the judges have- not properly applied the principles of the common law,- but, being too narrowly governed by old cases and max- ims, have too much prevented the public from having the benefit of that law." This contracted spirit, prevailing,, for a long time, in the courts of common law, necessarily drove a multitude of suitors into a court of equity for re- lief. The doors of this court were constantly open to receive them. I adduce an instance, familiar and striking. A double bond — a bond, with a penalty containing^ the double of the sum really due — is an instrument peculiar, I believe, to England, and those countries which have adopted the laws of England. It was originally contrived to evade those absurd constitutions, which interdicted the receipt or payment of interest for the use of money lent. Since interest could not be allowed by the law, as it then stood, the penalty was, in the courts of law, considered as the real debt, when the debtor did not perform his agreement at the time stipulated ; and for the penalty, judgment was- accordingly given. In proportion as business and trade became considerable and extended, the necessity and the propriety of paying and receiving interests became daily more apparent, and was allowed by the law ; and, in the reign of Henry the Eighth, it was declared, by an act of parliament, that the debt or loan itself was, " the just and true intent," for which the obligation was given. One would naturally suppose, that this legislative declaration would have been a sufficient authority for the courts of law to alter the principle, on which their former judg- ments had been given. The narrow-minded judges of ^ Lord Chief Justice Wilmot, 2 Wils. 350. 130 LECTTJKES ON LAW. those times thought otherwise; and, adhering wilfully and technically to the letter of the settled precedents, refused to consider the payment of principal, interest, and costs as a full satisfaction for the bond. In the courts of equity, where a more liberal spirit prevailed, the instru- ment, according to " its just and true intent," was con- sidered as merely a security for the money really due, and was discharged on its payment. But so pertinaciously, in this instance, did the courts of law cling to tlieir precedents, even so late as the present century, that the parliament was obliged, at length, to interpose, and to direct, that what had long been the practice in the courts of equity, should, in future, be the practice in the courts of law.^ We now see the causes of the progress, which a distinct and independent equitable jurisdiction made in England. In many instances, however, and, indeed, in the general principles of their proceedings and adjudications, the courts of law and equity have, for a century past, gradu- ally approximated to one another. A series of eminent lawyers, who successively filled the chancellor's chair, formed the system of equity into a regular science, which, like the science of law, cannot be acquired without the aids of study and experience. In the courts of law, a series of lawyers, equally eminent, have, by degrees, em- braced the enlarged and enlightened principles, by which law as well as equity should be governed and illustrated. In chancery, it is a maxim, that equity follows the law. In the courts of law, a powerful reason for adopting a principle or rule is the consideration, that the principle or rule has been adopted in chancery. Each jurisdiction, as far as possible, follows the other, in the best and most effectual measures for attaining the great ends of certainty, peace, and justice. The suggestion, indeed, of ev^ery bill 1 3 Bl. Com. 435. OF THE JUDICIAL DEPARTMENT. 131 in equity, in order to give jurisdiction to the court, is still, that the complainant has no remedy at the common law. But he who views the variety and extent of the causes ■determined in chancery, must be satisfied that this sugges- tion is now a mere fiction, copied, indeed, from the reali- ties of former times. We are now prepared to give an answer to the second question, which was proposed some time ago — In what material or essential points does the jurisdiction of chan- cery differ from a jurisdiction exercised according to the rules and principles of the common law? They differ not, as we have seen, in the rules of prop- erty, of evidence, or of interpretation : they differ not in the principles of justice or of positive law. Still, however, they differ in some points very material, and which ought to be known. They differ with regard to the mode of proof.^ By the rules of the common law, as a party cannot be a witness in his own favor, so he cannot be obliged to become a witness, or to furnish evidence, against himself. But the views of equity, with regard to this subject, are more ex- tensive and refined. If the defendant knows the claim made upon him to be well founded, he ought neither to ■conceal it, nor refuse to satisfy it. If he has done noth- ing improperly, he can sustain no loss by a candid declara- tion of what he has done. If his conduct has been fraudulent, the fraud should receive no protection : but it receives protection, if it is suffered to be concealed. For these reasons, when material facts rest only in the knowl- edge of the party, a court of equity examines him, on oath, with regard to the truth of the transaction, [1 The difference between the courts as to the modes of proof have heen generally abrogated by the statutes allowing parties and interested persons to testify, and the practice of taking depositions has been ex- tended to the law courts.] 132 LECTUKES ON LAW. In mercantile transactions, this mode of discovery is peculiarly reasonable and important. In such transac- tions, the parties are generally at a distance from one another : their contracts, therefore, cannot be made in the presence of witnesses. Of such transactions, each party keeps or ought to keep a regular diary or account. On the truth and accuracy of this account, the other party may naturally be supposed to place a very considerable degree of dependence. As this mode of discovery is unknown to the courts of law, equity has acquired a concurrent jurisdiction with those courts in all matters of account. From the same source, it has acquired a juiistiction in matters of fraud, and judgments at law obtained by fraud or concealment. In the courts of common law, the trial is by a jury. This trial requires, that the witnesses should give their testimony viva voce, and in open court. But in courts of equity, the mode of trial is by administering interroga- tories to the witnesses, and taking their depositions in writing, wherever they may happen to reside. For this reason, the chancery alone can take proofs by commission, when the witnesses are abroad, or about to go abroad, or are prevented by age or infirmity from attending. When a contract has been made and broken, a court of law only awards damages for the breach ; but a court of equity will decree a specific performance. It will like- wise set aside deeds, and order sales and conveyances of lands.^ These are the principal, though not the only points, in which the jurisdiction of a court of equity differs materi- ally from that of the courts of common law.^ I speak of 1 Millar, 482. 3 Bl. Com. 437. [■^ The mode of allegation originally differed in the two jurisdictions. It was, and is yet, required in the common law courts that the operative facts — that is, those facts which were the gist of an action — should be alleged simply and positively, in order that an issue might be framed OF THE JUDICIAL DEPAKTMEXT. lo3 those jurisdictions as considered under the aspects, under which they have been been hitherto viewed. There is a particular aspect, in which they have never, so far as I know, been viewed ; but to which I shall, by and by, direct your minute attention. In the meantime, it will be proper to consider a question, which has employed the talents of the most eminent writers on jurisprudence. Should the jurisdic- tion according to equity, and the jurisdiction according to law, be committed to the same court ? or should they be divided between different courts ? . My Lord Bacon thinks that they should be divided : my Lord Kaims thinks that thej' should be united. All this is very natural. My Lord Bacon presided in a divided, my Lord Kaims was a judge in a united jurisdic- tion. Let us attend to their arguments : the arguments of such consummate masters will suggest abundant mat- ter of instruction, even if we cannot subscribe to them implicitly. The reason assigned by my Lord Bacon for preferring the division of these jurisdictions between several courts is, that if they are committed to the same court, the dis- tinction between them will soon be lost ; for that the dis- cretionary will soon draw along with it the legal power.' My Lord Kaims admits, that, in the science of juris- prudence, it is undoubtedly of great importance, that the boundary between equity and common law be clearly ascertained ; because, otherwise, we shall in vain hope for suitable for a trial by jury. In chancery the trial was not by jury, and . the party might recite all of the evidentiary facts and circxunstances, and call upon his adversary to answer them and submit to the judge whether those facts and the answers constituted a right to the relief prayed. 1 1 Ld. Bac. 253. Aph. 45. 134 LECTUKES ON LAW. just decisions. A judge, adds he, who is uncertain ■whether the case belong to equity or to common law, can- not have a clear conception what judgment ought to be pronounced. But, on the other hand, may it not be urged, that to divide, among different courts, things intimately connected bears hard upon every man, who has a claim to prosecute ; because, before he bring his action, he must, at his peril, determine a point extremely nice — whether the case is to be governed by equity, or by common law ? Nor is the most profound knowledge always sufficient to prevent inconveniences upon this subject : for, though he may be perfectly acquainted with his own demand, he cannot certainly foresee the defence, nor divine whether it will be a defence at law or in equity. Weighing these different arguments, the preponderancy seems, in his opinion, to be on the side of a united jurisdiction. The sole inconvenience of a united jurisdiction — that it tends to blend common law with equity — may admit a remedy by an institute, distinguishing, with accuracy, their boundaries : but the inconvenience of a divided jurisdic- tion admits not any effectual remedy. > Both these great men agree in one point — that the dis- 1 Prin. of Eq, 49. [The supposition that the division of the jurisdic- tion between separate tribunals would enhance the danger, or that confer- ring both legal and equitable jurisdiction upon a single tribunal would ob- viate or lessen the risk, is demonstrated by experience to be a misapprehen- sion. In a New York case the courtheld that, " If a party brings an equita- ble action even now when the same courts administer both systems, the party must maintain his equitable action upon equitable grounds or fail, even though he may prove a good cause of action at law " (Bradley c. Aid- rich, 40 N. Y. .504), and the courts of New York feel obliged to dismiss the suit under such circumstances; See Ketchum v. Depew, 81 Hun, N. T. 271. The remedy lies in another direction, viz.: in a broader priv- ilege of amendment and the vesting of authority to transfer the cause from one docket to another upon just and reasonable terms. This may be done in several states. The distinction between the nature of the jurisdiction rather than the name of the tribunal is the substantial thing to consider.] OF THE JUDICIAL DEPAKTMENT. 135 tinction between common law and equity ought, by all means, to be preserved ; and one of them recommends even an institute to distinguish their limits with accuracy. With the becoming deference to such high authority, it may be worth while to examine, whether, in the fluctuat- ing situation of men and business, an attempt to fix per- manently the line of division between law and equity would not be fruitless and impracticable. This line, I am apt to believe, will be found to change necessarily accord- ing to different circumstances — the sta'te of property — the improvement of the arts — the experience of the judges — the refinement of the people. In rude ages, the first decisions of judges arose, prob- ably, from their immediate feelings ; in other words, from considerations of equity. In the course of their business, many similar cases would successively occur : upon these, similar decisions would naturally be given. A number of precedents, thus introduced, would, from the power of custom, acquire authority and -respect. General rules would gradually be formed ; and the utility of establish- ing them would become an object of attention. Those rules, however, upon a little further experience, would be found, at some times, too narrow; at other times, too broad. To adhere rigidly to them, at all times, would be to commit injustice under the sanction of law. To avoid an evil so alarming, it would be thought advisable, upon extraordinary occasions, to recede from general maxims, and to decide, as originally, according to the immediate sentiments of justice. In this manner, the distinction between equity and strict law was, probably, introduced : tlie former comprehended the established rules : the latter comprised their exceptions. But when the exceptions became numerous, many of them also would be found to be similar, and, consequently, to require a similar decision. Those similar decisions 136 LECTURES ON LAW. would, in time, produce a new rule ; and this new rule would, in its turn, give birth to new exceptions. If this account of the matter is just — and it seems to be natural — law and equity are in a state of continual pro- gression ; one occupying incessantly the ground, which the other, in its advancement, lias left. Tlie posts now possessed by strict law were formerly possessed by equity ; and the posts now possessed by equity will hereafter be possessed by strict law. In this view of the subject — and it is an interesting one — equity may be well deemed the conductor of law towards a state of refinement and perfection. In this view of the subject, we can find no diiEculty in pronouncing, that every court of law ought also to be a court of equity ; for every institution should contain in it the seeds of its perfection, as well as of its preservation. In this view of the subject, we shall find as little diffi- culty* in pronouncing, that every court of equity will gradually' become a court of law ; for its decisions, at first discretionary, will gradually be directed by general prin- ciples and rules. Thus, in England, the coui-t of chan- cery has gra,dually divested itself of its original and arbitrary character, and has approached to that of the courts of common law. Thus, again, in England, the courts of common law, animated lately with the spirit of improvement inspired by a liberal age, have enlarged their powers of just decision, and have advanced within the precincts of equity. The particulars, in which they still differ, are, indeed, of importance ; but I see no reason why the separate powers of chancery, placed there very properly, indeed, should be thought incommunicable to the courts of com- mon law. A power to compel discoveries by a party may, without any incongruity, be annexed to a common law jurisdiction. OF THE JUDICIAL DEPARTMENT. 137 This, to a certain degree, has been already done by a law of the United States. In the trial of actions at law, the courts of the national government are authorized to require the parties to produce books or writings in their power, in cases, in which they might be compelled to produce them by the ordinary rules of proceeding in chancery.^ The power of granting commissions to take, upon inter- rogatories, the depositions of foreign, removing, or infirm witnesses is familiar, in practice, to the courts both of the United States and of Pennsylvania.* The power of compelling a specific performance is, I apprehend, strictly and originally a power at the common law. la some of its unpropitious eras, indeed, the exer- cise of this part of its authority has, in most cases, fallen into disuse, and has not been revived, but anciently it sub- sisted in its full force and vigor ; and, in one case, it is supposed to subsist in its full force and vigor to this day. I fortify my opinion by instances of the fact. Fines or solemn agreements, acknowledged and entered of record, are well known to be of ver}' high antiquity at the common law. It is generally, I believe, supposed, that they took place only in pleas respecting land. But the fact is unquestionably otherwise. Fines were exe- cuted in other pleas. If either of the parties violated the agreement, a suit upon it was commenced. When they both appeared in court ; if they both acknowledged the writing containing the agreement ; or if the agreement was stated to be such by the justices, before whom it was taken, and this was testified by their record ; then the party, wTio had broken it, was in the king's mercy, and was attached till he gave good security to perform the concord in future — either the specific thing agreed on, if "■ Laws U. S. 1 con. 1 sess. c. 20, s. 15. X- This is now a very common practice in courts of law.] 138 LECTUKES ON LAW. that was possible; or otherwise, in some instances, an equivalent.^ Can a power to adjudge a specific perform- ance be expressed more unequivocally or more strongly ? This instance is referred to a period so ancient as the reign of Henry the Second. In the reign of Edward the First, we find that, in some cases, land could be recovered in a writ of covenant ; and in such cases, it was a real action : in other cases, damages only could be recovered ; and in such cases, it was a per- sonal action. The former writ of covenant was generally that, on which fines were levied.^ Actions of covenant for land occur likewise in the time of Edward the Second. It was held, that this action was appropriated for the re- covery of a fee simple or of a term.^ In tracing this subject down to the reign of Edward the Third, we find that a writ of covenant was that, upon which fines were most commonly levied. But, by this time, the writ of covenant was usually brought upon a supposed transaction. The writ of covenant, in this in- stance, had the effect of actually transferring the land ; and thus produced a specific effect.* Such, with regard to fines, continues to be the practice to the present day. I think I have now proved, that the power to adjudge a specific performance is strictly and originally a power at common law.^ The power to set aside deeds, and to order sales and con- veyances of land, can be considered only as branches of the power to compel a specific performance. In all the views which we have hitherto taken of this important part of jurisprudence, we find no reason to conclude, that a court of chancery would bestow any I I Eeev. 119. 2 Id. 477. " 2 Eeev. 33, 147. * Id. 173. p Powell, in his treatise upon contracts, published in 1790, but to ■which Wilson makes no reference, states the same views. 2 Powell on Contracts, p. 3.] OF THE JUDICIAL DEPARTMENT. 139 improvement of essential importance, on the juridical sys- tem of the United States, or of this commonwealth. There is, however, another view, in which this .subject ought to be considered. In that other view, if I mistake not, the establishment of a court of chancery will be found a matter of great moment both to the United States and to Pennsylvania. ^ Military power has too long governed in the affairs of men : influence of a kind more peaceful and benign is, we hope, about to assume its place. We trust that, in future, men, instead of knowing and treating one another as enemies, and as engaged in enterprises mutually destruc- tive, will know and treat one another as friends, and as jointly operating in plans and systems for promoting the prosperity, the virtue, and the felicity of the human race. Deeds of arms, we fondly anticipate, will not be the themes of future songs. The more delightful subjects of agriculture, of the arts, and of commerce will employ the efforts of genius the most sublime. Commerce arrests our present attention. Its encourage- ment is justly a favorite object with every govei-nment, which is good and wise. The protection of commerce, and of foreign merchants engaged in commerce, forms an article in the great charter of the liberties of England. A regulation, so salutary and so humane, deserves as it has obtained, the warmest eulogium of the eloquent Montes- quieu. Upon this subject, his powers carried him away like a torrent, rapid and irresistible : my humbler aim is to glide along a smooth and gentle stream. The law merchant as well as the law maritime forms a branch of the general law of nations. The inference is natural, that mercantile as well as maritime transactions should be the object of a separate jurisdiction; and that we should see courts of commerce as well as courts of 140 LECTURES OX LAW. admiralty. Things done upon the sea are deemed worthy of peculiar cognizance : are things done beyond the sea less entitled to peculiar notice ? In the I'ude and barbarous times, which are past, and which, we pray, may never return — in those times, above tiUuded to, when nations were known to nations only by ieate of hostility ; even tlieir hostile feats were subjected to the cognizance of law, and were dignified with an ap- propriate jurisdiction. The court of chivalry, held before the lord high constable and earl marshal of England, had cognizance of contracts and deeds of arms and of war out of the realm, and also of things virhich touched war within the realm.i When war was the general trade, this court enjoj^ed a high degree of consequence and reputation. My Lord Coke calls it " the honorable court." As com- merce comes in the place of war, should not commercial ■come in the place of military institutions ? Even with regard to commerce, we shall find, in former ages, establishments expressly made and calculated for its protection and encouragement, in the manner in which it was then carried on. This was chiefly in markets and public fairs, at which merchants attended personally with their merchandise. It was not then usual to trust property to a great amount in the hands of foreign correspondents. So early as the reign of Henry the Third, we find the •delays, and what were called the solemnities, of proceed- ings dispensed with, where the plaintiff deserved a particu- lar respect or privilege ; as noble persons, or merchants, who were continually leaving the kingdom.^ Edward the First has been often and deservedly styled the English Justinian. In his reign we may expect to find a proper attention paid to the interests of commerce. Our expectation will not be disappointed. In his reign the statute of merchants was made. 1 4 Ins. 123. = 1 Eeev. 295, 296, 300. OF THE .UTDICIAL DEPARTMENT. 141 The pressing demands, which arise in the course of mercantile transactions, rendered the delays and the nice- ties of the law inconvenient, and sometimes fatal, to tlie credit and fortunes of the merchants. This, it is said, oc- casioned many to withdraw from the kingdom. Those, who remained, made application that some speedy coui-se might be appointed for recovering their debts at the stipu- lated times of payment. In compliance with their appli- cation, the followijig method of securing a ready payment of their debts was provided by parliament. The mer- chant was to bring his debtor before the magistrates speci- fied in the law, to acknowledge the debt and the time of payment. This recognizance was entered on a roll. If the debtor did not make payment at the time appointed, the magistrate, before whom the recognizance was acknowl- edged, was, on the application of the creditor, obliged im- mediately to cause the chattels and devisable lands of the debtor to be sold, to the amount of the debt, by tlie ap- praisement of honest men. The money, if the property was sold, was paid instantly to the creditor : if the prop- erty could not be sold, it was delivered to him according to the appraisement. If, from partiality to the debtor, the appraisers set too high a price upon the goods, they were themselves obliged to take them at the price which they fixed, and to satisfy the creditor for the money due to him.^ Commerce continued to be patronized by the kings, and encouraged by the legislature, of England. In the twenty- seventh year of Edward the Third, was made the famous statute of the staple, containing a most complete code of regulations for commercial transactions at the staple, or great mart, which was then established in certain places of England. As this mart was intended, in its very institution, for 1 1 Reev. 405. 142 LECTURES ON LAW. the resort of foreign merchants, a mode, consonant to the ideas of foreigners, and fitted to the nature of mercan- tile transactions, was adopted for administering justice. That disputes might be decided among them according to their own conceptions, it was provided, that none of the justices of the courts of Westminster Hall, nor any other justices, if they came to the places wliere the mart was, should interfere with the jurisdiction of the mayor and constables of the staple. Within the town where the mart •was, those officers had cognizance of people and of things touching the mart. All merchants coming to it, and their servants, were, in all things concerning it, governed by the law merchant, and not by the common law of the land, nor by the usages of cities, or boroughs, or towns ; nor were they, concerning such things, to implead or be im- pleaded before the magistrates of such cities, boroughs, or towns. That the foreign merchants might have reason to complain of no one, and that no one might have reason to complain of them, speedy justice was administered from day to day, and from hour to hour. That contracts made within the staple might be strictly observed, and that payments might be punctually made, a course similar to that of the statute merchant was directed. The mayor of the staple was empowered to take similar recognizances of debts ; and upon those recognizances, similar proceedings were held. A recognizance of this kind has obtained the name of a statute staple. * It was directed that, in every staple town, the mayor should be one well acquainted with the law merchant, that he might be qualified for the discharge of such an impor- tant trust.^ If we refer to the institutions of the ancient nations ; we shall find that, among them too, tribunals have been established for the decision of mercantile causes. Magis- 1 2 Eeev. 11. 2 2 Reev. 75. OF THE JUDICIAL DEPARTMENT. 1-13 traLes, called -mohi5i-/.ai , had the jurisdiction of them in Athens.! The prsetov peregrinus determined them in Rome.^ Even after the fall of the western empire, the in- stitution of courts for the trial of commercial suits sub- sisted in many places : ^ and fairs and markets had their peculiar jurisdictions assigned for the expeditious deter- mination of controversies that might arise in them. The United States have the most extensive prospects of commerce before them. The variety of their climate, the richness of their soil, the number and value of their pro- ductions furnish them with abundant materials to exchange for the manufactures and refined commodities of Europe and of Asia. The genius of their governments is favor- able to trade, because it is favorable to equality and in- dustry, the only pillars, on which trade can be supported. The long and cumbrous list of duties and customs, which public debts, the arts of finance, and the political views of government have introduced into every country of Europe, is, in a great measure, unknown in their ports. They possess not, indeed, the advantages of use and habit to form precedents for their transactions, public and private, with foreign nations, and with the individuals of whom foreign nations are composed : but to compensate for this, they are disengaged from one inconvenience, with which use and habit are naturally accompanied — I mean that of confining the imagination, and damping the spirit of vigorous and enlarged enterprise. In order to improve the opportunities, with which they are favored, and to avail themselves, as they ought, of the happy situation, in which they are placed, they should encourage com- merce by a liberal system of mercantile jurisprudence. These observations, concerning the situation, the duty, and the interest of the United States, receive an easy and 1 Bouch, The Com. 134. = Id. 138. » Id. 140. 144 LECTURES ON LAW. a strong application to the situation, to the duty, and the- interest of Pennsylvania. In other countries, as we have seen, where commerce- has been regarded as an object worthy of the public at- tention, jurisdictions have been established for the trial and determination of commercial causes. In the United States and in Pennsylvania, commercial causes are tried in the same manner, by the same tribunals, at the same expense, and with the same delay, as other controversies relating to property. This must be often productive of the most serious disadvantages. Before the revolution, we were strangers, in a great measure, to what is properly called foreign commerce. The same system of commercial law pervaded f Jreat Bri- tain and her colonies. The rules, therefore, of admitting foreign testimony, and of authenticating foreign transac- tions, have been but lately the objects of much considera- tion. They have not been fixed with the clearness and precision, which are now become requisite. But tliey should, as soon as possible, be ascertained, particularized, and rendered as easy as the precautions necessary to avoid fraud will admit. Great innovations should not be made : a wise and well tempered system must owe much to experience. But the foundations should be laid betimes. They should be broad, and deep, and well compacted, that they may be sufficient to support the magnificent structure, which the present and future ages will build upon them. The important ends, which may be attained by a court of chancery formed and organized for commercial purposes, now begin to appear in prospect before us. In this view, the establishment of courts of chancery appears to be of high importance to the United States in general, and to the commonwealth of Pennsylvania in particular. It will not, I am sure, be supposed, that I am unfriendly OF THE JXTDICIAL DEPARTMENT. 145- to the trial by jury. I love — I admire it : but my love and my admiration spring from proper principles : I love and I admire with reason on my side. Sacrilege would be offered to the venerable institution, by profaning it to purposes,, for which it was never intended. Let it be maintained in purity — let it be maintained in vigor : but if it be so main- tained, it must be maintained in that spirit, and in that ap- plication, for which it was formed, and to which it is so exquisitely adjusted. Its genius should be encouraged and concentred : if it be applied to foreign and unnatural objects, its strength will soon dissolve and evaporate. Let us attend t(j the nature of mercantile transactions- Accounts never were, by the course of the common law,- brought to trial before a jury. To a jury, indeed, the gen- eral question — ouglit the party to account — was submitted for its determination.! But the adjustment of the accounts was submitted to auditors, instead of being tried by a jury.. If, upon any article in account, the auditors cannot agree ;- or, if agreeing, the parties are not satisfied ; then, upon, each point, so litigated, a separate and distinct issue may be taken, and that issue must .be tried by a jury. In this- manner, a hundred issues maybe joined in the same cause,, and tried separately by as many juries ; but the general statement of the disputed accounts still remains before- the auditors, and by them the general result from the- whole must be formed and ascertained. This mode of liquidating accounts judicially at common law, is obviously exposed to many disadvantages and delays ; and, for this reason, the action of account has, in a great measure,, fallen into disuse. In England, the parties in unsettled and litigated accounts have recourse to chancery ; in [1 Tlie members of the legal profession who desire to examine the- propositions here stated wilt find the authorities cited in Andrews' Stephens' Pleading, p. 78.] 146 LECTURES OX LAW. Pennsylvania, to arbitrators, or to jurors acting in the character of arbitrators. The numerous embarrassments, which arise from the want of a proper commercial forum, are well known and severely felt both by the gentlemen of the bar, and by the gentlemen of the exchange. Impressed with these truths, the committee who were appointed to report a draught of a constitution for the con- sideration of the late convention of Pennsylvania, included, in their report, the plan of a chancery establishment. The convention thought it improper to fix that establishment as a part of the constitution, but have given ample powers to the legislature to adopt that or any similar one, and to model and alter it as the sage instructions of time may direct. Impressed with these truths, which I have both wit nessed and experienced, I have thought it my duty to bring this important subject fully into your view. Viewed in a commercial light, Pennsylvania, and particularly her metropolis, attracts solicitous attention both on this and on the other side of the Atlantic. Every friend to Pennsylvania, every friend* to her metropolis, every en- lightened friend to the interests of commerce, must wish ardently to see her commercial establishments complete. These observations apply to the United States on a scale still more extensive ; and, as applied to them, therefore, acquire still an additional degree of importance. With these observations I conclude, at last, my minute delineation — if drawn in a more masterly manner, it would be interesting as well as minute — of the juridical establish- ments of the United States and of Pennsylvania. CHAPTER IV. OP THE NATURE OP COURTS. The next subjects of my remarks are, the nature, and the constituent parts of courts. That the judicial departments should be independent, is a principle, which, in a former part of my lectures,^ I had an opportunity of stating, explaining, and enforcing at large. In the review which we have now made of that department, as established in the United States and in this commonwealth, we see what a strict and uniform regard has been paid to the practical observance of this very im- portant principle. To neither of the constitutions is a judicial magistrate known, who holds his office by a tenure less secure or less respectable than that of his own good behavior. All courts sliould be open. This is one of the rules, which, by the constitution of Pennyslvania,^ is rendered inviolable by the legislature itself. It is a rule of the highest moment. The place of administering justice was originally at the gates of the cities — in other words, in the presence of all the people. Such was the practice in the days of Job.* By Moses also, of legislators the first and wisest, the same ancient custom is mentioned.* Homer speaks of it as 1 Ante, vol. 1, p. 405. » Art. 9, s. 11. ° Job. xxix. 7. * Gen. xxiii. 18. 10 147 148 LECTTTBES ON LAW. subsisting in the heroic ages.^ In some countries, this simple and undisguised mode is still observed.^ Among the Saxons, as we are informed by Selden, their courts, like the heliastic court at Athens, were, for the most part, kept in the open air.^ By the ancient Romans, trials were held in public, in the presence of the accused, and of all who wished to hear them. This procedure was open and noble; says the writer* who mentions it ; it breathed Roman magnanimity. In France, too, as appears, we are told, from some old manuscript law books, criminal processes were anciently carried on in public, and in a form not very different from the public judgments of the Romans. " The witnesses," says Beaumanoir, one of the oldest writers on the laws of France, " ought to give their testimony in open court." ^ All trials, says Beccaria,^ should be public ; that opin- ion, which is the best, or, perhaps, the only cement of society, may curb the authority of the powerful, and the passions of the judge ; and that the people, inspired with courage, may say, " We are not slaves ; we are protected by the laws." " Let not," says my Lord Bacon,^ in the same spirit of sound sense, " decrees issue in silence : let judges give the reasons of their judgments : let them do this openly ; that what is unrestrained in point of authority, may be cir- cumscribed by a regard to character and fame." But why, it may be asked, are examples produced in such numbers — why do we cite authorities of so much weight, in order to establish a principle, in itself so ex- tremely plain ? Is it not self-evident, that, in a court of justice, every one is entitled to a public trial? Why, then, refer us to instances, in Asia, in Greece, in Rome, in France, of the enjoyment of a self-evident right ? 1 II. 1. 18, V. 497. ^ 1 Gog. Or. L. 28. » Bac. on Gov. 10. « Com. on Bee. c. 22. ^ Mont. Sp. L. b. 28, c. 34. « C. 14.. ' 1 Ld. Bac. 252. Aph. 38. OF THE NATUEK OF COUETS. 149 Because, in Asia, in Greece, in Rome, in France, too, till very lately, the enjoyment of this self-evident right has been lost. Liberty, indeed, says it is self-evident : but tyr- anny holds a contrary language ; and unfortunately for the human race, the voice of tyranny has been more loud and more powerful than the voice of freedom. To states as well as to individuals, the lesson is salu- tary — let those, who stand, take heed lest they fall. Asia is fallen, Greece is fallen, Rome is fallen, France is fallen — I correct myself — she rises. Let the other monitory instances suggest caution : I offer them not to your imi- tation. The slave who suffers, and the slave who dreads the inquisition — how would he exult to be able to say, in the irrevocable language of Pennyslvania, " all courts shall be open." According to the rules of judicial architecture, a system of courts should resemble a pyramid. Its base should be broad and spacious : it should lessen as it rises : its sum- mit should be a single point. To express myself without a metaphor — in every judicial department, well arranged and well organized, there should be a regular, progressive gradation of jurisdiction ; and one supreme tribunal should superintend and govern all the others. An arangement in this manner is proper for two reasons. _ 1. The supreme tribunal produces and preserves a uni- formity of decision through the whole judicial system. 2. It confines and it supports every inferior court within the limits of its just jurisdiction. If no superintending tribunal of this nature were estab- lished, different courts might adopt different and even con- tradictory rules of decision ; and the distractions, spring- ing from these different and contradictory rules, would be without remedy and without end. Opposite determina- tions of the same question, in different courts, wotild be 160 LECTURES ON LAW. equally final and irreversible. But when, from those opposite determinations, an appeal to a jurisdiction superior to both is provided, one of them will receive a sentence of confirmation, the other, of reversal. Upon future occasions, the determination confirmed will be con- sidered as an authority ; the determination reversed will be viewed as a beacon. Ampliare jurisdictionem has been a principle avowed by some judges : it is natural, and will operate where it is not avowed. It will operate powerfully and irresistibly among a number of co-ordinate and independent jurisdic- tions ; and, without a tribunal possessing a control over all, the pernicious and interfering claims could neither be checked nor adjusted. But a supreme court proliibits the abuse, and protects the exercise, of every inferior judiciary power. In France, before the present revolution, the establish- ment of a number of parliaments or independent tribunals produced, in the different provinces, a number of incongruous and jarring decisions. This has been assigned, and with much apparent reason, as the great source of that diversity of customs and laws, which prevailed, to an uncommon degree, in the different parts of the kingdom of France, in other respects so well compacted. In England, the principles and the rules of law are, through the whole judicial}' department, reduced to a standard, uniform in an exemplary degree. In no country, perhaps, does a stronger impression prevail of the advan- tages resulting from stability in the administration of jus- tice. But by an unwise inattention, to say the least of it, to the inferior establishments, the base of the exquisitely proportioned edifice, erected by Alfred, is narrowed and weakened ; and its beauty and durability are consequently impaired. In the United States and Pennsylvania — for here we OF THE NATURE OF COITRTS. 151 must take the two constitutions in a collected view — a fine and regular gradation appears, from the justices of the peace in the commonwealth, to the supreme court of the national government. The justice of peace is, in criminal matters, assisting to the court of quarter sessions : in civil causes, his jurisdiction is subordinate to the court of com- mon pleas. The courts of common pleas, and quarter ses- sions, and orphans' courts of each county are subordinate to the supreme court, whose jurisdiction extends over the commonwealth. The supreme court is, by a late law, ren- dered subordinate to the high court of enors and appeals. With regard to the register's court, an exception is intro- duced by the law just now mentioned. Though a county jurisdiction, it is not rendered subordinate to the supreme court by an appeal : that revisionary process is directed •per saltum to the high court of errors and appeals. From the highest court of a state, a writ of error lies, in federal causes, to the supreme court of the United States. In the national government, a writ of error lies from a district to a circuit court, and from a circuit to the supreme court. In controversies, to which the state or nation is a party, the state or nation itself ought to be amenable before the judicial powers. This principle, dignified because it is just, is expressly ratified by the constitution of Pennsyl- vania.i It declares, that suits may be brought against the commonwealth. The manner, the courts, and the cases, in which they may be brought, are left to the direction of the legislature. It was deemed sufficient to recognize the principle : its operation will be guided in such a way, as time and circumstances shall suggest. Upon the same principle, the judicial power of the national government " shall extend to controversies to which the United States > Art. 9, s. 11. 152 LECTUBES ON LAW. are a party ; and to controversies between two or more states." ^ These provisions may be viewed by some as incom-' patible with the opinions, which they have formed con- cerning the sovereignty of the states.^ In the introduction to my lectures,^ I had an oppor- tunity of showing the astonishing and intricate mazes, in which politicians and philosophers have, on this subject, bewildered themselves, and of evincing, that the dread and 1 Cons. U. S. art. 3, s. 2. P The argument which here follows as to the suability of a state under the constitution as it was originally adopted foreshadows the opinion of Judge Wilson and the other judges in the great case of Chi^holm v. Georgia, 2 Dall. 419. A case which arose in the Supreme Court of the United States in 1792, in which jurisdiction was assumed at the suit of an individual against a state. It was here that the relation of the state to the nation was established and defined. Of this decision Judge Cooley says : "Nothing could be plainer than this opinion ; nothing more une- quivocal. The people of the United States by sovereign act had formed the Constitution to make more perfect the Union which had'existed be- fore. After this clear and authoritative declaration of national suprem- acy, the power of a court to summon a State before it at the suit of an Individual might be taken away by the amendment of the Constitution — as was in fact done [by the eleventh amendment] — without impairing the general symmetry of the federal structure, or inflicting upon it any irremediate injury. The Union might survive and • accomplish the beneficent purposes entrusted to it, even though it might lack the power to compel the States to perform their obligations to creditors. We shall not pause to show — what indeed is self-evident — that the Union could scarcely have had a valuable existence had it been judicially determined that the powers of sovereignty were exclusively in the States or in the people of the States severally. Neither is it important that we proceed to demonstrate that the doctrine of an indissoluble Union, though not in terras declared, is nevertheless in its elements at least contained in the decision. The qualified sovereignty, national and State, the subordina- tion of State to nation, the position of the citizen as at once a necessary component part of the federal and of the State system, are all exhibited. It must logically follow that a nation as a sovereignty is possessed of all those powers of independent action and self-protection which the successors of Jay subsequently demonstrated were by implication con- ferred upon it." Ann Arbor Lectures on Constitutional Law, p. 49.] 8 Ante, vol. 1, p. 21-23. OF THE NATURE OF COUETS. 153 redoubtable sovereign, when traced to his ultimate and genuine source, is found, as he ought to be found, in the free and independent man. In one of my lectures,^ I proved, I hope, that the only reason, why a free and in- dependent man was bound by human laws, was this — that he bound himself. Upon the same principle on which he becomes bound by the laws, he becomes amenable before the courts of justice, which are formed and authorized by those laws. If one free and independent man, an original sovereign, may do all this ; why may not an aggregate of free and independent men, a collection of original sov- ereigns, do this likewise ? The dignity of the state is compounded of the dignity of its members. If the dignity of each singly is undiminished, the dignity of all jointly must be unimpaired. Is a man degraded by the manly declaration, that he renders himself amenable to justice ? Can a similar declaration degrade a state ? To be privileged from the awards of equal justice, is a disgrace, instead of being an honor ; but a state claims a privilege from the awards of equal justice, when she refuses to become a party, unless, in the same case, she becomes a judge. "In any cause " — said the judge of the high court of admiralty of England, in a very late decision ^ — " In any cause where the crown is a party, it can no more withhold evidence of documents in its possession, than a private person. If the court thinks proper to order the produc- tion of any public instrument, that order must be obeyed." In the Mirror of Justices, we have an account of the first constitutions ordained by the ancient kings of Eng- land. When the writer of that book calls them ancient, they must be so indeed ; for my Lord Coke ^ informs us, 1 Ante, vol. 1, p. 190, et seq. ' 1 Col. Jur. 68. « 10 Eep. Pref. 14. 154 LECTUKES ON LAW. tliat most of it was written long before the conquest. Among these constitutions, we find the following very re- markable one. " It was ordained that the king's court should be open to all plaintiffs ; fiom which they should have, without delay, remedial writs, as well against the king or the queen as against any other of the people." i You are pleased b}' tracing another instance, in which Saxon principles are renewed by our constitutions. " Judges ought to know, that the poorest peasant is a man, as well as the king himself : all men ought to obtain justice; since in the eyes of justice, all men are equal; whether the prince complain of a peasant, or a peasant complain of the prince." ^ These are the words of a king — of the late Frederick of Prussia. In his courts of jus- tice, that great man stood upon his native greatness, anc^ disdained to mount upon the artificial stilts of sov- ereignty. In England, there is a noted distinction, which runs through the whole s^'^stem of courts. Some are courts of record : others, are courts not of record. A court of record is one, whose proceedings and acts are entered in rolls of parchment, and whose power is to hold pleas according to the course of the common law. These rolls, being the memorials of the judges, import in them such incontroUable credit, that they admit no averment, or plea, or proof, to the contraiy of what they contain. Such a record can be tried only by itself.^ No possible kind of evidence, not even that of the senses, can shake its authenticity ; if we may rely on the authority of a Avell- known story in Westminter Hall. A party, in perfect health, was hearing liis cause ; but his counsel, by an un- fortunate stroke of his plea, had killed him on the record. The judges could, by no means, take notice of him, though 1 4 Cou. Ang. Norm. 487. " Warv. 343. ^ 1 Inst. 260. OF TEE NATURE OF COURTS. 155 he stood before their eyes. He averred that he was; alive : his averment could not be received ; it was against the record.i A court, not of record, is one, vi^hose acts are not en- rolled in parchment, or whose proceedings are not accord- ing to the course of the common law.^ It deserves to be remarked, that the distinction between courts of record and courts not of record was unknown in England till after the Norman conquest.^ The occasion and the cause of its introduction deserve also to be re- marked. The Conqueror, averse to the Saxon law of lib- erty, but unwilling to run the risk of an attempt to over- turn it at once, formed a plan, artful and too successful, for undermining it by degrees. He appointed all the judges of the curia regis from among the Normans, ig- norant of the Saxon laws, and fond of their own. The language of the court was altered; and all pleadings and proceedings were entered in the Norman tongue. This introduced the technical terms and, imperceptibly, the rules and maxims of that foreign jurisprudence. This introduction of a new language, the exaltation of the aula regis, and the consequent depression of the county courts, paved the way, in the opinion of a very sensible lawyer,* for the distinction between courts of re- cord and not of record. Courts of record were those, whose proceedings were duly entered in the Norman tongue, and, unless reversed, could never be questioned or contradicted. To have allowed such a privilege to tlie county courts, in which the Saxon suitors were judges, and whose proceedings were in the English language, would have been inconsistent with the genius of the Conqueror's plan ; for it would have had a tendency to confirm, rather 1 Bar. on St. 248. " Wood. Ins. 464. ' 1 Eeev. 68. * Sulliv. 271, 156 LECTURES ON LAW. than to depress, the Saxon system. The county courts, therefore, were considered as courts not of record.^ From anything I have said, no inference, I hope, will be drawn, that I deem fidelity and exactness in registering and preserving the acts of courts of justice as matters of small importance ; they are of the greatest. I only mean to enter my protestation against a sacrifice of the prin- ciples of common sense, to a superstitious regard for the infallibility of records.* [1 The distinction between courts as of record and courts not of record seems not to liave any practical basis in the facts or utility in practice. Magistrates are required to keep a record of their proceedings and are courts of record. Hendrlck v. Whitman, 105 Mass. 28 ; Ellsworth v. Leonard, 21 Vt. 537. The true classification, and one based upoil a practical difference, is into courts of general and courts of special jurisdic- tion. Obert B. Hannell, 18 New Jersey Law Eep. 73. The practical distinction is between the presumption indulged in as to jurisdiction.] [2 The sentiment of this protest now generally prevails ; the jurisdiction may be attacked and an allegation against the record is not regarded now as formerly.] CHAPTER V. OP THE CONSTITUENT PAKTS OF COURTS. — OF THB JUDGES. I NOW proceed to consider the constituent parts of courts. The judges form one of those constituent parts. Let me introduce their character by the beautiful and correct description of the Magna Charta of King John. A judge should know the laws : he should be disposed to observe them. It seems to be the opinion of some, that severity should be the striking feature in a judge's countenance. His countenance should reflect the sentiments of his heart. In his heart should be written the words of the law. If the law say, and the law does say, that, in all its judg- ments, justice shall be executed in mercy ; on the heart of a judge will this heavenly maxim be deeply engraven ; in his looks it will beam. !N'ec supplex turba timebunt. Judicis ora sui ; sed erunt sub judice tnti. David. He ought, indeed, to be a terror to evil-doers ; but he ought also to be a praise to those who do well. The more numerous as well as the more valuable part of the citizens are, we trust, of the latter description. Compla- cency, therefore, rather than vengeance, should habitually influence the sentiments, and habitually mark the features of a judge. 157 158 LECTURES ON LAW. A judge is the blessing or he is the curse of society. His powers are important : his character and conduct can never be objects of indifference. ^ When a judge is mentioned as the curse of society, Jeffreys, of infamous memory, instantly starts into view. Some circumstances, which attended the fate of that odious man, place, in the strongest light, that deep detes- tation which is always entertained, and which is expressed whenever it can be expressed with safety, against the character and person of an oppressive and tyrannical judge. When his master abdicated the throne, his own security lay only in flight. From the law, the law's worst assassin could expect no protection. That he might escape un- known, he shaved his eyebrows, put on a seaman's habit, and, all alone, made the best of his way to Wapping, with a design to take shipping for a foreign country. But his countenance could not remain undiscovered under all this disguise : a man, whom, upon a trial, he had frightened almost into convulsions, no sooner got a glimpse of it, than, in a moment, he recollected all the terrors he had formerly felt. Notice was instantly given to the mob, who rushed in upon him like a herd of wolves. He was goaded on to the Lord Mayor : the Lord Mayor, seeing a man, on whom he had never looked without trembling, brought before him in this situation, fell into fits, was carried to his bed, and never rose from it. On his way to the Tower, to which he was committed, he saw threaten- ing faces on every side ; he saw whips and halters held up around him ; and cried out in agony, " For the Lord's sake, keep them off." " I saw him, I heard him," says a contem- [1 " I have thought from my earliest youth till now that the greatest scourge an angry heaven can inflict upon an ungrateful and a sinning people was an ignorant, a corrupt or a dependent judiciary. Will you draw down this curse upon Virginia ? " John Marshall, in Convention.] OP THE JUDGES. 159 porary historian, " and without pity too ; though, without pity, I never saw any other malefactor." ^ On the other hand — I now speak from Beccaria^ — a man of enlightened understanding, appointed guardian of the laws, is the greatest blessing that a sovereign can bestow on a nation. Such a man is accustomed to behold truth, and not to fear it : unacquainted with the greatest part of those imaginary and insatiable necessities, which so often put virtue to the proof, and accustomed to con- template mankind from the most elevated point of view, he considers the nation as his family, and his felloAV- citizens as brothers. Patience of hearing, says the great Lord Bacon, is an essential part of justice; and an overspeaking judge is no well tuned cymbal. It is no grace to a judge, first to find that, which, in due time, he might have heard from the bar ; or to show quickness of conceit in cutting wit- nesses or counsel off too short ; or to prevent information by questions, even by pertinent ones. In hearing a cause, the parts of a judge are four — to direct the evidence — • to moderate length, repetition, or impertinency of speech — to recapitulate, select, and collate the material parts of that which hath been said — to give the rule or sentence.^ A judge, particularly a judge of the common law, should bear a great regard to the sentiments and decisions of those, who have thought and decided before him. It may be asked — why should a point be received as law, merely because one man or a succession of men have said it is law, any more than another point should be received as reason, merely because one philosopher or a set of philosophers have said it is reason? In law, as in philosophy, should not every one think and judge for himself ? Stare decisis may prevent the trouble of inves- 1 4 Guth. 1063, 2 c. 42. ' 3 Ld. Bac. 377. 160 LECTUKES ON LAW. ligation ; but it will prevent also the pleasure and the advantages of improvement. Implicit deference to authority, as I have declared on more occasions than one, I consider as the bane of science ; and I honor the benefactors of mankind, who have broken the yoke of that intellectual tyranny, by which, in many ages and in many countries, men have been deprived of the inherent and inalienable right of judging for them- selves. But how natural it is, from one extreme to vibrate with violence to its opposite one ! Though authority be not permitted to tyrannize as a mistress ; may she not be consulted as a skilful guide ? May not respect be paid, though a blind assent be refused, to her dictates ? A man must have an uncommon confidence in his own talents, who, in forming his judgments and opinions, feels not a sensible and strong satisfaction in the concurrence of the judgments and opinions of others, equally or more conversant than himself with the subjects, on which those judgments and opinions are formed. Society of wise men in judgment is like the society of brave men in battle i each depends not merely on himself: each depends on others also : by this means, strength and courage are dif- fused over all. To human authority in matters of opinion, as well as to human testimony in matters of fact, a due regard ought to be paid. To relj- on both these kinds of evidence, is a propensity planted, by nature, in the human mind. . In certain sciences, a peculiar degree of regard should be paid to authority. The common law is one of those sciences. Judicial decisions are the principal and most authentic evidence, which can be given, of the existence of su(5h a custom as is entitled to form a part of the com- mon law. Those who gave such decisions, were selected for that employment, on account of their learning and ex- perience in the common law. As to the parties, and those OF THE JUDGES. 161 who represent the parties to them, their judgments con- tinue themselves to be effective laws, while they are un- reversed. They should, in the cases of others, be con- sidered as strong evidence of the law. As such, every pru- dent and cautious judge will appreciate them. He will remember, that his duty and his business is, not to make the law, but to interpret and apply it. CHAPTER VI. THE SUBJECT CONTINUED. OF JUEIES. Juries form, with a few exceptions, another constituent part of courts : they form, especially, a constituent part of courts exercising criminal jurisdiction.^ I mentioned, in a former lecture,*^ that I love and ad- mire the trial by jury ; and that my love and admiration of it spring from proper principles. Those principles I am now to unfold. When I speak of juries, I feel no peculiar predilection for the number twelve : a grand jury consists of more, and its number is not precisely fixed. When I speak of juries, I see no peculiar reasons for confining my view to a unanimous verdict, unless that verdict be a conviction of a crime — particularly of a capital crime. In grand juries, unanimity is not required. When I speak of juries, I mean a convenient number of P To the task of adding anything of value to this account of the origin and development of the trial by jury, the editorfeels himself unequal, for the reason tliat he knows of no writer whose opinion is more worthy of credit than that of Judge Wilson. Furthermore, while every scholar should know these things, exact information upon them Is not so requi- site as upon the present state of the law regulating trial by jury, or what seems now more properly to express the characteristics of a modern trial, viz., that by evidence. " Ante, p. 145. 162 OF JUEIES. 163 oitizens, selected and impartial, who, on particular occa- bious, or in particular causes, are vested with discretionary powers to try the truth of facts, on which depend the property, the liberty, the reputation, and the lives of their fellow-citizens. Having described what I mean when I speak of juries, it is proper that I should assign, in the fullest and clear- est manner, my reasons for some parts of my description. The first part in this description, which has drawn your most marked attention, is, probably, that which represents the powers, vested in juries, as discretionary. This part, therefore, merits the first illustration. It will be remem- bered all along, that the discretionary power vested in juries is a power to try the truth of facts. " Ad quses- tionem facti respondent juratores." The truth of facts is tried by evidence?- The principal species of evidence, which comes before juries, is the tes- timony of witnesses. In a former lecture,^ I had occasion to observe, that human testimony is a source of evidence altogether orig- inal, suggested by our constitution ; and not acquired, though it is sometimes corroborated, and more frequently ■corrected, by considerations arising from experience. I had occasion further to observe, that, in no case, the law orders a witness to be believed ; for the testimony of a thousand witnesses may not produce belief ; and that, in no ■case, the law orders a witness not to be believed ; for belief may be the unavoidable result of his testimony. These general positions, then laid down, it is now our business to fortify and apply. If we shall be successful in fortifying and applying them ; we shall see, in a new and in a very striking light, the sublime principle of the institution of juries. It is tedious, and it is painful, to travel through all the [1 See Trial by Evidence.] = Ante, vol. 1. p. 498-500. 164 LECTURES ON LAW. numerous degrees, into which it has been attempted to* arrange the force of evidence. Some writers on the sub- ject have divided proofs into such as are near, and such as are remote. Others have been adventurous enough to define the precise number of each, which is necessary to superinduce the condemnation of a person, who is accused. One says, two will be sufficient : a second says, three are necessary: a third fixes upon a number different from either. They have never reflected, that evidence arises from the circumstances attending the fact : that those cir- cumstances should be considered in a collected and not in a separate view; and that on the more or less intimate connection which subsists between them, the strength or weakness of the evidence resulting from them depends. The truth of this remark will sufficiently appear, if we consider separately any of the presumptions enumerated by those writers on the criminal law. There is not one of them, which may not appear favorable, or unfavorable, or indifferent to the person under trial. A man, with a bloody sword in his hand, is seen running from a house. On entering it, a person run through the body, and no other person, is found there. Would not the presumption be strong, that the man, who ran from the house was the assassin ? But should a jury be compelled, on this evi- dence, to convict him ? Should he not be allowed to prove, if he can, the connection of this strong circumstance against him with another, in his favor, equally strong — that, pass- ing the door of the house, he was drawn, by the cries of the person assassinated, to his assistance, and suddenly seized the poignard which the assassin had left in his side ? The weight of any one circumstance cannot be ascertained independently of others : the number and connection of those others cannot be specified, previously, in a didactic treatise upon the degrees of evidence. Thus it is with regard to evidence arising from circum- OF JTJEIES. 165 Stances : will more success attend an attempt to ascertain systematically the' degrees of evidence arising from posi- tive testimonj' ? This depends upon the character of hira who delivers, and upon the character of him who receives it. That, which would be believed from the mouth of a witness famed for his integrity and good sense, would be disbelieved, if told by a witness remarkable for falsehood or credulity. A person, hackneyed in the ways and vices of the world, who has deceived and who has been deceived a thousand times, is slow to credit testimony. An unde- signing countryman, who has never practised nor expe- rienced the artifices of fraud, believes implicitly every- thing he hears. Can the characters of witnesses — can the characters of jurors be graduated in a dissertation upon evidence? And yet, in each particular case, the force of evidence must depend upon the character both of witnesses and jurors. For these reasons, we find, in the institutions of an- tiquity, no general rules prescribed concerning the force of testimony, or the weight of presumptions ; the Emperor Hadrian expressly declares the impracticability of pre- scribing them. When one of his judges applied to him for a rescript, containing particular directions upon this sub- ject ; the emperor wrote him an answer, in which the sen- timent we have mentioned is beautifully exhibited. " No certain rule," says he, " can be given with regard to the degree of evidence, which will be sufBcient in every cause that shall occur. This only I can recommend to you in general ; that you by no means confine yourself to any one kind or degree ; but that, according to the nature and the circumstances of every case, you estimate, in your own mind, what you believe, and what you do not think to be sufficiently proved." ' The evidence of the sciences is very different from the 1 2 M'D. Ins. 631. 166 LECTUEES ON LAW. evidence of facts. In the sciences, evidence depends on causes which are fixed and immovable, liable to no fluctu- ation or uncertainty arising from the characters or conduct of men. In the sciences, truths, if self-evident, are in- stantly known. If their evidence depend on their connec- tions with other truths, it is evinced by tracing and dis- covering those connections. In facts, it is otherwise. They consist not of principles which are self-evident ; nor can their existence be traced or discovered by any neces- sary connection with self-evident principles. As facts, therefore, are neither principles, nor necessarily connected with principles ; the evidence of facts is unsusceptible of a general theory or rules. Let us then forbear to attempt a graduated scale of this kind of evidence. It is the philosopher's stone of criminal jurisprudence. It is impossible to establish general 'rules, by which a complete proof may be distinguished from a proof that is incomplete, and presumptions slightly prob- able may be distinguished from conjectures altogether un- certain. If, therefore, the evidence of facts can be ascertained, distinguished, and estimated by no system of general rules ; the consequence unavoidably is, that, in every case, the evidence of facts must depend upon circumstances, which to that case are peculiar. The farther consequence xmavoidably is, that the power of deciding on the evidence of facts must be a discretionary power ; for it is a power of deciding on a subject unsusceptible of general princi- ples or rules. And, after all, is it, at last, come to this ? Do we live by discretionary power ? Is- this the final result of the boasted trial by jury? In Turkey, life and everything precious in life depend on the nod of one man : here, it seems, on the nod of twelve. There is a difference, in- deed, in number : but, in principle, where is the difference ? or JTJEIES. W7 Such is, and such must be our doom. It is agreed, on all hands, that, in every state, there must be somewhere a power supreme, arbitrary, absolute, uncontrollable : these are strong expressions for discretionary power. There liave been, it is true, different opinions concerning the question — where does this power reside ? What security, then, it may next be asked, is there, un- der any government, for the enjoyment of property, char- acter, freedom, and life ; if, under everj' government, the last resolution of the tedious and expensive process is into arbitrary or discretionary power ? Let us not despair : perhaps, after a little investigation, we may be happj' enough to discover some emerging isth- mus, on which, amidst this unstable, watery scene, that surrounds us, we may be able to find rest for the soles of our feet. It has been shown, at lajge, that it is iriipracticable, by any determinate rules, to ascertain or graduate the force of evidence in facts ; and that, consequently, juries, who decide on the evidence of facts, must possess discretionary powers. But though it be impracticable to ascertain this matter by determinate rules ; is it, therefore, impracticable also to give and acquire some conception of it by a general reference ? Perhaps not. Let us try : let the reference be as comprehensive as pos- sible : if we must live by discretion, let the exercise of that discretion be universally unanimous. If there must be, in every political society, an absolute and discretionary power over even the lives of the citizens ; let the operations of that power be such, as would be sanctioned by unanimous and universal approbation. Suppose then, that, in pursuing this train of thought, we assume the following position — that the evidence, upon which a citizen is condemned, should be such as would govern the judgment of the whole society. Let us, first, inquire, whether this position be reason- 168 LECTURES ON LAW. able : let us next inquire, whether, if this position is rea^ sonable, the establishment of it would give, to the citizen, a just degree of security against the improper exercise of discretionary power : let us, in the last place, inquire, whether,- if this theory is eligible, it be possible to reduce its principles to practice. 1. I am first to inquire, whether the position — that the evidence, upon which a citizen is condemned, should be such as would govern the judgment of the whole society — be a reasonable position. We showed, at large, in a former part of these lectures,^ that, in a society, the act or judgment of a majority is al- ways considered as the act or judgment of the whole. Before the formation of society, the right of punish- ment, or, to speak with more propriety, the right of pre- venting the repetition of crimes, belonged to him who had suffered the injury, arising from the crime which was com- mitted. In a society formed and well constituted, the right of him who has suffered the injury is transferred to the community. To the community, therefore, instead of the injured individual, he who committed the injury is now to answer. To answer to the community for his conduct, was a part of the social contract, which, by becoming a member, he tacitly and voluntarily made.^ In this manner, a complete right is vested in the society to punish ; and a full obligation is laid on the individual offending, to be amenable to punishment. The social contract is of a peculiar kind : when ana- lyzed into its component parts, it is found to be a compo- sition of agreements, equal in number to the number of all 1 Ante, vol. 1, p. 2'77. 2 Upon this principle of consent, all civil penalties are debts to the public ; from whence the Greeks and Bomans used }i,veiv, and " poenas solvere, luere," for undergoing a punishment, which was a conditional debt contracted by their own consent. Pet. on Jur. 79. OF JUKIES. 169 the members, of which the societj'^ is composed. To each of those agreements there are two parties. One member ■of the society is the party on one side : all the other mem- bers form the party on the other side. The punishment of a crime in regulated society presup- poses two things. 1. The crime must be authenticated. 2. The penalty must be ascertained. Upon the principles which we have laid down, each of those two prerequisites to punishment must be equally the act of the society — of the whole society. With regard to each of these prerequisites, the society may act either coUectiyely and personally, or by deputa- tion and representation. If they act by deputation and representation, they may intrust one of the forementioned prerequisites to the management of one class of deputies and representatives ; and, to another class, they may com- mit the management of the other prerequisite. With re- gard to both, however, the proceedings must be those of the whole society, or, at least, sanctioned by the author- ity of the whole society : for it must be remembered, that to the whole society the right of punishment was trans- ferred, and with the whole society the engagement to be amenable to its justice was made. On a nearer and more minute view of things, we shall discover a most material difference between the modes proper for the management of the different prerequisites ; because, on a nearer and more minute view of things, we shall discover, in the management of those different pre- requisites, a most material difference in the situation of the parties to the social contract. Penalties may be adjusted, graduated, and ascertained Tjy general rules, and against all the members of the society indiscriminately. In the consequences of the regulations Tnade upon this subject, every member may be affected in a double capacity ; he may be affected, either as the indi- 170 LECTUBES ON LAW. vidual party to one agreement, or as forming one of the nu- merous party to each of the other agreements, of which' we have seen the social contract to be composed. In other words, he may be affected either as the author or as the sufferer of the penalties. Impartiality, therefore, in the con- duct of every member, may rationally be expected ; and there will be little reason to use strong or numerous pre- cautions against interestedness or its eflEects. If the so- ciety act by representatives, and a difference of sentiment takes place among them concerning any subject; the- numbers on the different sides, in the representative body, will probably bear to one another a proportion nearly the- same, as would be found if all the members of the society Avere personally assembled. But when we attend to the management of the other prerequisite — that of authenticating the commission of a, crime — a situation of men and things, extremely different,, appears to our view. Here no general rules can be adopted — no measures can be taken, which will equally and indiscriminately affect all the different members of the community in their turn. Here, the parties to one of the agreements, which form the social contract, appear in their original stations — on one side, an individual — on the other, all the members of the society except himself — on one side,, those who are to try — on the other, he who is to be tried. In this isolated situation, in which he necessarily but unfortunately stands ; and in which, if all the members of the society were present, his fate must, from the very nature of society, be decided by the voice of the majority — in this situation, if the society act by representatives, it is reasonable to demand, and it is just to grant the reason- able demand, that the unanimous voice of those who rep- resent parties, and who themselves are parties as well as judges, should be necessary to warrant a sentence of con- demnation. In such a situation, where the representa- OF JUKIES. 171 tives are not indifferent, and, consequently, may not be impartial, their unanimous suffrage may be considered as nothing more, than what is necessary to found a fair pre- sumption concerning the sentiments of a majority of the whole community, had the whole community been per- sonally present. In such a situation, therefore, we may probably be justified in recurring to our position — that the evidence, upon which a citizen is condemned, should be such as would govern the judgment of the whole society : and we may require the ■ unanimous suffrage of the deputed body who try, as the necessary and proper evidence of that judgment. 2. I am next to inquire, whether the establishment of this position would give, to the citizen, a just degree of security against the improper exercise of discretionary power. In all states, as we have seen, discretionary powers must be placed somewhere. The great body of the people is their proper permanent depository. But on some occa- sions, and for some purposes, they must be delegated. When they are exercised by the people themselves, a ma- jority, by the very constitution of society, is sufficient for the purpose. When they are exercised by a delegation from the people, in the case of an individual ; it would be difficult to suggest, for his security, any provision more efficacious than one, that nothing shall be suffered to op- erate against him without the unanimous consent of the delegated body. This provision, however, may still be fortified by a number of additional precautions. Care may be taken in the manner of forming the delegated body. As this body cannot, for reasons which will appear afterwards, be selected, on every occasion, by the great bod}' of the people themselves ; they maj^, on every occasion, be selected by an officer, confidential, impartial, and, by the 172 LECTURES ON LAW. people themselves, appointed for this very purpose. Not- withstanding this very guarded selection, yet if any im- proper character appear among the delegated body, every reasonable exception may be allowed against his compe- tency to act. To a necessary exercise of discretionary powers on one hand, the indulgence of a discretionary power may be opposed, on the other. Leave may be given to reject any determinate number of the delegated body, even without disclosing any cause of rejection. Under all these guarded and generous precautions, the person who would undergo a trial might, with an almost literal propriety, be said to try himself. If, even after all these precautions, conviction might, by possibility, take place improperly ; a power might be vested in another body to set the improper conviction aside, and to remit the trial of the cause to a new abstract of the citizens. Surrounded and fortified by establishments and pro- visions of this nature, innocence might certainly be se- cure. 3. I am now, in the last place, to inquire, whether these principles, so beautiful in theory, can possibly be reduced to practice. Reduced to practice ! It cannot have escaped you, that I have been describing the principles of our well-known trial by jury. Those principles, so illustrious in themselves, will re- ceive a new degree of splendor from a more particular investigation concerning tlie history, the nature, and the properties of this admired institution. To Athens, to Germany, and to Normandy, the institu- tion of juries has been attempted to be severally traced. From Athens it has been supposed to be transplanted to Rome ; from Rome, to England. Those who think it originated in Normandy or Germany, suppose it to have OF JUEIES. 173 been brought into England from the place of its original establishment. The great principle of Solon's system was, unquestion- ably, this noble one — that very citizen should enjoy the inestimable right of being tried by his peers, and bound ■only by laws to which he had given his consent. His laws were of the most extensive nature. They compre- hended rules of right, maxims of morality, precepts of agriculture, and regulations of commerce. His institu- tions concerning marriage, succession, testaments, the rights of persons and of things, have been disseminated through the jurisprudence of everj- civilized nation in Europe.^ The trial b}' jury, therefore, as well as other ■establishments, may, it is said, refer with great propriety, its original to Athens. In Athens, the citizens were all equally admitted to vote in the public assembly, and in the courts of justice, whether civil or criminal.^ The trial by a jury in Athens was conducted, it is said, with the same forms as those of an English jury, with a few exceptions arising from the difference between the two political constitutions.^ When the cause was ready for hearing, the jury, who were to try it, were chosen by ballot.* It was necessary that they should be competent in point of understanding, character, and disinterested- ness.® The jury was very numerous : it consisted some- times of five hundred, sometimes of a thousand, sometimes of fifteen hundred members.® If the defendant, in a criminal prosecution, had half the number of votes in his favor, he was acquitted.^ The presiding archon settled the cause for trial, gave the ballot, received the verdict, and published it.^ ' 1 Gill. 461. 2 Pet. on .Jur. 57, .•iS ; 1 Gill. 459. * Pet. on Juv. 27. ■* Id. 69. ^ Id. 28, 2!i. » Id. 29. ' Id. ibid. 8 Id. 28, r,(), :,l. 174 LECTUIIES ON LAW. In this mode of trial, we are told, equal law was openc to all : it was favorable to liberty, because it could not be influenced by intrigues. ^ In every particular cause, the jurors were chosen, and sworn anew.^ They were attended by proper officers of the court, that no one might mix with them, or corrupt them, or influence their decisions.^ They were not obliged to follow testimony in cases immediately within their own knowledge : but when witnesses were the best evidence, they were admitted.* They were an important body of men, vested with great powers, patrons of liberty, enemies to tyranny.^ The antiquity of this institution among the most civilized people of the world, is urged as an argument, that it is founded in nature and original justice.^ " The trial by a jury of our own equals seems to grow out of the idea of just government ; and is founded in the nature of things." ' From this institution, as it was established and observed by the Greeks, we pass to it as established and observed by the Romans. About sixty years after the expulsion of the Tarquins, the Romans, agitated by the dissensions between the patricians and plebeians, on many subjects, and particu- larly on that of their judicial government, sent commis- sioners to Athens to obtain a transcript of the laws of Solon. Among the Romans, there was a double selection of jurors. On the kalends of January, a number, different at different times, of citizens of best note were chosen by ballot. From these, all the juries were supplied, to the number of eighty-one each, upon ever}'- new cause.^ On each side, there was a liberty to challenge fifteen : fifty- 1 Pet. on ,Jur. 32. 2 Id. 43. 8 Id. 44. * Id. 48, 69, SI. '" Id. 69. « Id. 70. ' Id. 108. *= Id. 113, IJ.-j. OF JURIES. 175 one remained to give the verdict. This rejectio judicum is often mentioned by Cicero.^ In Rome as in Athens, the jury -wqxq sworn ; and tlie defendant was acquitted on an equality of votes.^ Both at Athens and Rome, the time allowed to the counsel for their pleadings, was measured by the dropping of a certain quantity of Avater.^ When the counsel, on ■each side, had finished their arguments by saying, " dixi," •the praetor sent out the jury to consult about their verdict. When they returned with their verdict, they delivered it .to the preetor ; and he published it.* The Roman juries were judges of law as well as of fact.^ They could give a verdict of condemnation, a verdict of acquittal, or a verdict of non liquet. This last has, by some, been considered as a special verdict ; but im- properly ; for a special verdict furnishes the court with a statement of facts, on which they can found a decision of law ; whereas a non liquet among the Romans immediately adjourned the cause for farther consideration. In some modern tribunals on the continent of Europe, a most scandalous use has, by judges, been made of their power to pronounce a non liquet. In the celebrated cause of Milo, we can trace the vestiges of a special jury. Pompey, who was, at that time, ■sole consul, with the dictatorial power, " videre ne quid detrimenti respublica caperet," appointed a jury, in all respects, of the most able and upright men. Of this jury, the celebrated Cato was one. " Te, M. Cato, tester," says Cicero, in his animated and particular address. The selection of a jury in this peculiar manner, instead of the usual way by ballot, was, probably, one instance, in which Pompey exercised his dictatorial authority.® 1 Pet. on Jur. 114, 115, 122. ^ j^. xil. ^ Id. 134. * Id. 119. I20. ° Id. 121. » Id. 13.3. 176 LECTURES ON LAW. Julius Caesar extended the Roman name and power into Gaul and Germany ; and reduced those countries into the form of Roman provinces. This is an expression of strong and peculiar import. When a country Avas reduced into the form of a Roman province, it lost its own laws, and was governed by those of Rome.^ Caesar visited Britain : Claudius, one of his successors^ achieved the conquest of a considerable part of the island He planted in it four colonies. One of them — that at Maiden — was intended, as we are told by Tacitus,^ not so much as a check upon the rebel Britons, as to accustom the new conquests to a familiarity with the Roman laws — " imbuendis sociis ad officia legum." His designs were crowned with success. The Britons, who, at first, were disgusted even with the language of Rome, became soon the admirers of her language, her eloquence, and her laws.' Under the reign of Severus, the Roman laws were in their meridian splendor in Britain, and were illustrated by the talents and authority of the celebrated Papinian.* When the Romans retired from England to guard the vitals of the empire, the Britons resumed, in part, their ancient customs ; but blended them with the Roman insti- tutions, with which they had long been familiar. As the trial by jury was a part of the Roman system of judicial polity, when her colonies were established in Britain, it is probable, that this, among other parts, was left and was continued among the Britons.^ Such is the train of observations, which has induced an opinion, that the trial by jury was introduced into England from Athens, through the intermediate channel of Rome. Others thinks they can trace this mode of trial through a different channel. The very learned Selden is of opinion, that the Saxons 1 Pet. on Jur. 140. " Ann. 1. 12. " Pet. on Jur. 142. * Id. 143. 6 Id. 146, 179. OF JUEIES. 17T derived the institution of juries immediately from the Grecians. The government of the Saxons, about the time of Tiberius, was, in general, as he informs us,i so suited to that of the Grecians, that it cannot be imagined but much of the Grecian wisdom was introduced among them, long before the glory of the Romans was exalted to its greatest height. It maj'- be well supposed, he infers, that there is some consanguinity between the Saxons and the Grecians, though the degree of that consanguinity be not known. The people were a free people, because they were a law to themselves. This was a privilege belong- ing to all the Germans, in the same manner as to the Athenians and the Lacedemonians. The most ordinary trial among the Saxons was, upon a traverse of the matter in fact, by witnesses before the jurors ; their votes made the verdict, and determined the matter in fact. In former times, continues he, it was questionless a confused manner of trial by votes of the whole multitude, which made the verdict hard to be dis- cerned. But time taught them better advice, to bring the voters to a certain number, according to the Grecian way.^ The trial per pares, we are told by others, was common to all the northern nations, as well as to the Saxons.^ It is probable, says an ingenious and well informed writer, that, among the Saxons, every kind of law-suit was, at first, determined in full assembly, and by a plurality of voices. But when the duty of these assemblies became burthensome by the increase of business, convenience introduced a practice of selecting a certain number of their members to assist their president in the determination of each cause. Hence the origin of juries ; the precise date of whose establishment is uncertain, because it prob- ably arose from no general or public regulation, but ' Bac. on Gov. 9. ^ ij. 56. » Miliar, 440. Sulliv. 251, 178 LECTUBES ON LAW. from the gradual and almost imperceptible changes, au^ thorized by common usage in the several districts of the kingdom. The number of jurymen was, for some time, different upon different occasions ; till the advantage of uniform practice introduced a general rule, which deter- mined, that no less than twelve persons should be called in iill ordinary causes.^ A third class of writers contend, that juries, properly so called, were first introduced into England from Normandy. They admit a near affinity between this institution and that known to the tribunals of the Saxons ; but insist, that, among that people, the trial by jury, speaking correctly,^ did not exist. The trial, say they, per duodecim juratos, called nambda, was established among the Scandinavians at a very early period ; but having fallen into disuse, was revived by a law of Reignerus surnamed Lodbrog, about the year eight hundred and twenty. Seventy years after this time, RoUo made his settlement in Normandy ; and, among other customs, carried with him this mode of trial. When the Normans transplanted themselves into England, they were anxious to legitimate this as well as other parts of their jurisprudence, and endeavored to substitute it in the place of the Saxon sectatores, or suitors to the court. The earliest mention, they say, which we find of anything like a jury, was in the reign of the Conqueror. He had referred a cause to the county, or sectatores, to determine in their county court, as the course then was according to the Saxon establishment. That court give their opinion of the cause. But Odo, the Bishop of Baieux, who presided at the hearing of the cause, was dissatisfied with their determination, and directed, that, if they were still sure they spoke truth, they should choose twelve from among themselves, who should confirm it upon their oaths. The old trial by an indefinite number of suitors of court con- 1 Millar, 123. 2 1 Eeev. 18, 60. OF JURIES. 179 tinued, it is added, for many years after the conquest; but the precedent set by the Bishop of Baieux had a great -effect towards altering it. It was not, however, till the reign of Henry the Second, that the trial by jurors became ^eneral.^ If this account possessed all the accuracy, with the want of which it contains an implied censure of others, still it would admit the principles and substantial rules of trial by jury, to have subsisted among the Saxons ; and would establish, between their institution and that of the Normans, a difference only with regard to the number of jurors, and to their qualification by an oath. But, on farther examination, we shall find, that, in both these respects, the law was the same before as after the con- quest — that the suitors of the court, in other words, the freemen, were the judges, or, as we now say, the jury.^ Before the conquest, we can discover the clearest ves- tiges of a jury qualified by an oath, and consisting' of twelve men. The most ancient, says Selden,^ are to be found in a law of King Ethelred. Its original is in the following words — " In singulis centuriis comitia sunto, atque liberse •conditionis viri duodeni, setate superiores, una cum pree- posito sacra tenentes juranto se adeo verum aliquem in- nocentem baud damnaturos, sontemve absoluturos " — In every hundred let there be a court ; and let twelve free- men of mature age, together with their foreman, swear, upon the holy relics, that they will condemn no innocent, and will absolve no guilty person.* Selden, as we find from his notes collected by Bacon, translates the word " prsepositus " — the lord of the hun- dred. If his translation is just ; then this is a strict in- stance of the duodecemviral judgment. I translate the word " prsepositus " — the foreman of the jury : if my ' 1 Reev. 60, 61. 2 guUlv. 247. 8 Anal. b. 2, c. 6. * Pet. on Jur. 159. V2 180 LECTURES ON LAW. translation is just ; then the jury, in this instance, con- sisted of thirteen members, including their foreman. I can only say, that, so far as I know, my translation is the usual one of the word, propositus ; that it seems rather unnatural to designate the lord of the hundred by the name of the president of the jury ; and that, I apprehend, it was never customary for the judge and jury to be sworn " together " — " una." There were two Saxon kings of the name of Ethelred. The first was the immediate predecessor of the great Alfred: the second was one of his successors. Selden refers the law which we have mentioned, to the reign of tlie second Ethelred. Now, there must be some mistake here one way or the other. If this law describes the jury of twelve; it is not the most ancient vestige of it; for, as we shall soon see, it was unquestionably established in the reign of Alfred. The conjecture is far from being im- probable, that this law should be referred to the reign of the first Ethelred ; and that it describes a jury consisting of thirteen — a foreman and twelve othere. It has been already observed, that, among the Saxons, the number of jurymen was probably different at different times. It may be observed here, that, before the era of which we now speak, we discover not the slightest traces of the principle of unanimity in juries. If a jury was equally divided in a criminal prosecution, we have seen that, in Athens and Rome, the defendant was acquitted ; but what was to be done in a civil cause ? To avoid fre- quent dilemmas of this kind, it is probable that juries consisted generally of an uneven number. Tliis number might be fixed by the first Ethelred to thirteen. This, at least, was an improvement upon a larger and more in- convenient nunxber. But to the penetrating Alfred, this number, and the regulations connected with this number, would, probably, OF JUKiES. l:sl appear to require and to be susceptible of still greater im- provement. A jury of thirteen sit on the life of a pris- oner. Six vote for his condemnation : six vote for lii.s acquittal : must his life depend on a single vote — perhaps not more to be relied on than the single throw of a die '.'' Is it not probable, that such as this would be the soliloquy of the humane Alfred ? If so ; is it not probable, that,, from this precarious situation, the family of Alfred — for his people were his children — would be relieved by the resources of a mind, no less distinguished by its vigorous exertion than by its wise and benevolent reflections ? We can only conjecture his motives, indeed: but we know his conduct. He fixed the number of jurors at twelve : to a conviction by that number, he rendered a unanimous vote indispensably necessary. To him the world is indebted for the unanimous duodecemviral judgment. I establish these interesting facts. I have already mentioned, on the authority of my Lord Coke, that the greatest part of the book called " The Mirror of Justices," was written long before the conquest. In that book, we find an account of Alfred's acts and judgments, conjectured to have been originally composed by himself. Of that account, I give the following very literal translation from the old French — the language, iu which Andrew Home compiled and published the book. " He hanged Cad wine, because he judged Hackwy to deatli without the assent of all the jurors, in a case where he had put himself upon a jury of twelve men^ and because three were for saving him against nine, Cadwine removed tlie three for others upon whom Hackwy did not put himself." " He hanged Frebern, because he judged Harpin to death, when the jurors were in doubt as to their verdict ; for where there is a doubt, they should save rather than con- demn." 1 1 Pet. on Jur. 166, 167. 182 LECTTJKES ON LA"W. These texts are short : but they are pregnant with pre- cious instruction. 1. Each juror may here find a salutary lesson for his conduct, in the most important of all the transactions of a man or a citizen — in voting whether a fellow-man and a fellow-citizen shall live or die. Does he doubt ? he should acquit. It is only when the clearest conviction is in full and undivided possession of the mind, that the voice of conviction ought to be pronounced. 2. All the jurors may, in this transaction, of all human transactions the most important, find a salutary lesson for their conduct, in forming the collected verdict of the whole from the separate judgment of each, I speak of criminal — I speak of capital cases : because the cases here mentioned were those, in which persons were " judged to death." Is the judgment of a majority of the members — that the defendant should be convicted — a sufficient foundation for a verdict of conviction by the jury? It is not. That verdict must be composed of each separate judgment. In the case before us, a majority of three to one were for con- viction. But the judge was hanged for pronouncing sentence of death upon the votes of this majority, though it was propped by an adventitious accession of three other votes. 3. Every citizen may here find most comfortable infor- mation of the jealous attention, with which the law watches over him, even when he is accused of violating the law. No jury can pass upon him, except that upon which he puts himself. " Hackwy," says the case before us, " did not put himself upon those others." For every trial there must be a new selection. The discretionary powers, which we have described, and which, in one view, appear so for- midable, though, in every view, they are so necessary, can never be exercised against him by any body of men, to the OF JURIES. 183 exercise of whose powers he does not give his consent. He may suffer, indeed, in another way. He may suffer the pain of contumacy, direful and hard. His contumacy may, by a legislative process, be transformed into a con- fession of his guilt. But, by his country he can never suffer, unless, in the language of the law, he " put himself upon his country." In the strictest and most correct meaning of the word, we have unquestionably, I think, traced the trial by jury to the Saxons. Selden thinks they derived it immediate- ly from the Greeks : others think they derived it from the Greeks through the intermediate channel of the Romans. The latter seems the most probable opinion. From the Romans they might receive it, by their immediate inter- course with them in Germany, or they might receive it by still another intermediate channel — that of the Britons. It has been already mentioned, that the Roman arms were followed constantly and rapidly by the Roman laws. If, therefore, we can trace the conquests of Rome to the Saxons ; to them we may expect to trace the institutions of Rome likewise. The loss of the legions under Varus was one of the most striking events in the reign of Augustus. On the mind of the emperor it made so deep an impression, that he was often heard to cry, in his interrupted slumbei's^ — Varus ! restore my legions ! This remarkable disaster happened in or near the country of the Cherusci, which was itself a part of Saxony ; and was, indeed, the consequence of the extraordinary pains employed by Varus, to diffuse among the inhabitants the laws and jurisprudence of Rome. By Velleius Paterculus we are informed, that when Varus commanded the army in Germany, he entertained an opinion, that men, who had nothing human about them 184 LECTURES ON LAW. but their form and their language, might be civilized by- laws much more easily, and much more effectually, than they could be brought under subjection by the sword. Under the influence of this impression, he remained in his camp without military exertion ; and, surrounded with enemies, sat in judgment on causes, which were brought before him, in the same manner as if he had been a praetor presiding in the forum of Rome. Of this propensity, the Germans took an artful advantage. They instituted, before Varus, a continued series of litigation ; they expressed, in the strongest terms, their gratitude at beholding their con- troversies terminated by Roman justice, and at seeing the mild energy of law substituted in the place of decisions by force. They expressed also their hopes, that, by the influence of this new discipline, their own ferocity would be gradually softened, and themselves would be gradually qualified to think and to act as the friends of Rome. The surprise of his legions was the first thing which roused him — but it roused him too late — from his delusive dream. The Saxons, it is said, might see the benefit and retain the exercise of the Roman institutions, after they had expelled him who introduced them with so much zeal, and so much unguarded confidence. The Saxons, who invaded and conquered England, might also learn the Roman forms of decision through the me- dium of the Britons. On a former occasion,' I mentioned, that there is, in truth, no reason to suppose that the de- struction of the Britons by the Saxons, on their invasion of England, was so great or general as it has been fre- quently represented. After some time, there was, unques- tionably, an intimate and a continued intercommunication of manners, customs, and laws between the two nations. Even an English historian admits, that a more minute and > Ante, vol. 1. p. 442, 443. OP jupaES. 185 particular account of the Anglo-Saxon constitution miglit be extracted from the Welsh laws of Howell Dha, which were collected in the year eight hundred and forty-two, than even from the Saxon laws themselves. He indeed accounts for this similarity, by supposing that the Welsh adopted the regulations of their ancient enemies. A Welsh historian would, probably, admit the fact of the similarity, but, as to the inference drawn from it, he might, perhaps, be able to turn the tables upon the historian of England. It is, indeed, highly probable, that the Saxons borrowed more fi'om the Britons, than the Britons borrowed from the Saxons. I have now traced the trial by jury, in its principle, and in many parts of its practical rules, to the most splendid eras of llome and Athens : and I have ascertained the reign in which its present number was fixed, and the principle of unanimity in verdicts of conviction was intro- duced. On this principle of unanimity, farther attention ought to be bestowed. We have seen an express and a very awful authority, that, in verdicts of conviction iu criminal cases, it must be inviolably observed. Is the rule extended — ouglit it to be extended to verdicts of acquittal in criminal cases ? Is it extended — ought it to be extended to any verdict in civil cases ? I state the questions on the double grounds of fact and reason ; because, in these lectures, we are en- titled to consider the law as citizens as well as jurists. It may be our duty to obey, when it is not our duty, because, without any fault, it is not in our power, to approve. I shall consider the questions historically and on prin- ciple. On this, as on other topics of common law, we shall probably find that principle is illustrated by history. I beg leave, before I proceed, to suggest one precaution — that the idea of a unanimous verdict should be carefully distinguished from the idea of a unanimous sentiment in 186 LECTTJEES ON LAW. those who give that unanimous verdiot. This distinction, perhaps, will be found far from being unworthy of your attention. But let us proceed. That verdicts in civil causes, as well as verdicts of con- viction in criminal causes, must be unanimous in order to be valid, seems to be a rule unknown to the law of Eng- land for many ages after that of Alfred. During some reigns after the conquest, the law was, that if some of the jurors were for one party, and some for the other, new jurors were added, till twelve were found, who agreed in opinion for one of the parties.^ In the reign of Henry the Third, a unanimous verdict was still not deemed absolutely nec- essary ; but the dissenting jurors were amerced, as guilty of a kind of offence, in obstinately maintaining a difference of opinion.^ In the next reign — that of Edward the First — it was laid down for law by a respectable writer,^ that when the jurors differed in opinion, the judge, before whom the cause was tried, might, at his election, add others, till twelve were found unanimous ; or might compel the jury to agree among themselves, by directing the sheriff to keep them without meat or drink, till they agreed on their verdict.* There was still another method, which, we are informed by a remarkable case in that reign, was the custom. The vel-dict of the minority as well as of the majority was ascertained, and distinctly entered on the rfecord ; and then judgment was given according to the verdict, of the majority.^ In the eighth year of Edward the Third, when a juror delayed his companions a day and a night, without assents ing or giving any good reason why he would not assent, the judge committed him to prison. In the forty-first year of the same reign, the point was fully debated in the 1 1 Keev. 106. « Id. 242. • » Fleta. * 1 Eeev. 480. 5 id. ibid. 2 Hale. P. C. 297. OF JUEIES. 18T court of common pleas, and, as has been generally thought, finally settled. All the jurors, except one, were agreed. They were remanded, and remained all that day and the next without eating or drinking. Being then asked if they were agreed, the dissenting juror answered, no ; and said that he would die first in prison. On this, the justices took the verdict of the eleven, and committed the single juror to prison . All this happened in an assize. But when judgment was prayed upon this verdict, in the court of common pleas, the justices were unanimouslj' of opinion, " that a verdict from eleven jurors was no verdict at all." When it was urged, that former judges had taken verdicts of eleven both in assize and trespass, and one taken in the twentieth year of the king was particularly mentioned ; Thorpe, one of the justices, said, that it was not an example for them to follow, for that judge had been greatly cen- sured for it : and it was said by the bench, that the justices ought to have carried the jurors about with them in carts till they were agreed. Thus it was settled, we are told, that the jurors must be unanimous in the verdict ; and that the justices may put them under restraint, if necessary, to produce such unanimity.^ Unanimity produced b}^ restraint I Is this the principle of decision in a trial by jury ? Is that trial, which has been so long considered as the palladium of freedom — Is that trial brought to its consummation by tyranny's most direful engine — force upon opinion — upon opinion given under all the sanctions and solemnities of an oath ? Every other agreement produced by duress is invalid and unsatisfactory : what contrary principles can govern this ? Let us here make a pause — let us turn round and look back upon the point said to be settled, and the manner of settling it. Useful observations will probably be the re- sult. 1 2 Heev. 191. 188 LECTUKES ON LAW. We see that, in civil cases, unanimity was not originall}^ required from the jurors : the unanimous verdict of twelve was, indeed, deemed necessary ; and, for this reason, new jurors were added, till twelve were found of the same mind. This mode must have been productive of very •great inconveniences. It was necessary that the added jurors should be as fully informed concerning the cause, as those who had been impanelled originally. Every new addition, therefore, must have been attended with all the trouble, and expense, and delay of a new trial. With a view, probably, to avoid those inconveniences, a custom was introduced to enter on the record the opinion of the minority as well as that of the majority ; and to give judg- ment upon the latter opinion.^ From the record of the case, however, in which this is stated to have been the custom, it appears that another mode was adopted sometimes by the jurors among them- ■selves, and without any communicat^ion of it to the court. A large extract of this record, of the twentieth year of Edward the First, is furnished us in one of the valuable notes annexed to my Lord Hale's history of the pleas of the crown.^ The history of that case, and the conduct of the jury who tried it, deserve very particular attention. Certain lands were recovered against a prior before two judges of assize, in the sixteenth year of Edward the First. The prior complained, that injustice had been done him at 1 In the fifty-sixth year of Henry the Third, we have a precedent of the manner, in which the entry on the record was made — " And all the jury except say upon their oath, etc. and says upon his oath, etc. But hecause the aforesaid eleven say accordingly, etc. therefore it is considered," etc. In a record of the fourteenth year of Edward the First, the reason is assigned in these words — " quia dicto majoris partis juratorum standum est." To the principle — that a majority is sufficient — and not — that unanimity is necessary — an appeal is made on the record. 2 Hale, P. C. 297. 2 Vol. 2, p. 298. OP JURIES. ]s;> the assize ; and the Bishop of Winchester and others -wero appointed to hear the prior's complaint, and to do justice. The judges appealed, for their justification, to the recoi d of the judgment, which they had given. In that record, the conduct of the jury was stated very minutely. John Pickering, one of the jurors, in narrating the verdict of the jurj', was contrary to all the other jurors ; for he nar- rated a different thing from what was agreed upon among- them, as appeared by tlieii- examination. For this con- duct he was amerced, and ordered into the custody of the sheriff, till he made satisfaction for his transgression. Tlie judges, say the bishop and his associates, without specify- ing on the record, as was the custom in such (;ases, the opinions of the eleven, or the contradictory opinion of John Pickering, received the verdict, as if all liad been of the same sentiment concerning it, and gave judgment accordingly. This judgment was, by the bishop and his associates, declared contrary to the law and custom of the kingdom. From this decision, a writ of error was brought before the king, by the original plaintiff. But whether any final determination was given, oi-, if given, what it was, we are not informed. From the record it appears, that, when the jurors could not agree in a verdict, it was the custom and deemed to be the law to enter the different sentiments upon the record, and give judgment according to those of the ma- jority. But from this record something more appears. It appears, that the jury might agree upon a verdict among themselves, and appoint one of their number to narrate it to the court — that if the person, thus appointed, narrated the verdict in a manner contrary to what was agreed on, he was guilty of a misdemeanor — that the verdict agreed on should not, however, be vitiated by the prevarication of the foreman, but should be received according to M-^hat was agreed upon among the jury. Such is the evident import 190 LECTURES ON LAW. of the record before the judges of assize, and of the judg- ment which they gave upon the proceedings. The bishop and his associates are extremely inaccurate- in stating the facts, upon which they ground their repre- hension of tlie judges. From their statement one would be led to imagine, that Pickering narrated one verdict as- the voice of the other eleven, and another as his own ; and that the judges, without taking any notice of this contra- diction, had received and entered the verdict as a unanimous one. But this was very far from being the fact, as it ap- pears upon the record of the two judges of assize. Pick- ering specified in his narration no difference of sentiment. He, on the contrary, attempted to palm upon the court, as- a unanimous verdict, one contradictory to that which had been agreed on among the jury. The other jurors dis- closed the verdict agreed on. That verdict was received and entered as a unanimous one. Pickering himself ap- pears not to have either denied or retracted his own agree- ment to it. The law and custom of the kingdom, there- fore, concerning concerning contradictory verdicts, were- applied with great inaccuracy, to the proceedings befor& the two judges. Highly probable it is, however, that, before this verdict was formed, much diversity of sentiment was entertained concerning it, among the jurors. The expressions of the- record are very remarkable — " inter illos fuit provisum " — the verdict was provided among them. Consideration,, consultation, adjustment, are all suggested by this em- phatic phrase. One important subject of their deliberation is mentioned;; and it appears, that their sentiments were worthy of the- subject, which employed their -attention. The prior, it seems, claimed the plaintiff as his villain. The conse- quence of this claim, if established, would have been, that the plaintiff could not have recovered the lands in ques- or JURIES. 191 tion. For a villain could acquire no property in lands or goods : but if he purchased either, the lord might enter upon them, or seize them for his own use.^ The jury found, that the father of the plaintiff was a free man, and of free condition ; and that although tlie father and his issue held, of the prior and his predecessors, their tenements in villainage and by villain services, this should not prejudice them as to the freedom of their per' sons. They assign the reason — because no prescription of time can reduce free blood to a condition of slavery ; there- fore the plaintiff should recover. This position, indeed, the bishop and his associates declare to be altogether false ; and some of the jury themselves, perhaps, entertained a degree of hesitation concerning it, and did not adopt it till after much deliberation and advisement. They pro- vided, however, a verdict, founded on this position, and instructed one of their number to narrate that verdict to the court. The conduct of this jury in forming their verdict de- serves the attention — perhaps, as we shall afterwards find^ the imitation of their successors. Sentiments, somewhat discordant when taken separately, may, by a proper pro- cess, be melted down into a unanimous verdict. Hitherto we have discovered no law or authority, which, in civil causes, requires unanimity in the verdicts, far less in the sentiments, of jurors. In this reign, however, an approach seems, at first sight, to be made towards the rule. The author of Fleta, who wrote in the time of Edward the First, gives, as we have seen, the election to the judges, either to increase the number of jurors till twelve are found unanimous, or to compel the first twelve, by hunger and thirst, to agree. The author of Fleta was a writer very respectable : great deference is due to his sentiments : but the senti- 1 2 Bl. Com. 93. 192 LECTURES OX LAW. meats of no writer have, ou the balance of authority, the- Aveight of judicial determinations. Besides, the practice of withholding from jurors the causes of torpor and the incen- tives of passion, while they ponder and deliberate concern- ing their verdict, will, perhaps, be traced to a source and to principles, very different from those assigned by the author of Fleta. The case decided in the forty-first year of the reign of Edward the Third may, perhaps, be urged as a leading and governing authority for the principle of unanimity in the verdicts and opinions of jurors. In that case, the court said, that the justices ought to have carried the jurins about with them iu carts, till they were agreed. But, as to this saying of the court, I crave tlie liberty of propos- ing two questions. Is it supported by any previous custom or adjudication? Our investigations hitherto lead us to conclude, that it has no such support. Is it the point of adjudication in this very case ? It is not. The question in judgment before the court was this ■ — Is the verdict from eleven jurors only a good verdict ? This question the court determined judicially; and their determination was in the negative. But was the other question — What shall be done with a disagreeing jury ? — was this question in judgment before them ? It was not. Was the answer given to this question a necessary con- sequence of their adjudication on the point judicially before them ? It was not. The verdict of eleven jurors only might be an erroneous verdict. Does it follow, that the error can be prevented or rectified only by carting the jury till they agree ? According to the practice previous to this saying of the court, it would have been rectified by entering on the record the opinion of the dissenting jurori According to the practice subsequent to this saying, the error would have been prevented by directing a juror to OF JURIES. 19ci. be withdrawn. According to the principles of jury trial*, it might be prevented or rectified by a variety of modes other and more eligible than that of carting the jury. Some of those modes will soon be suggested. " I would know," says my Lord Chief Justice Vaughaji,. in the celebrated cause of Bushell,^ " whether anything be more common, than for two men, students, barristers, or judges, to deduce contrary and opposite conclusions from the same case in law ? And is there any difference, that two men should infer distinct conclusions from the same testimony ? Is anything more known, than that the same author, and the same place in that author, is forcibly urged to maintain contrary conclusions : and the decision, is hard which is in the right ? Is anything more frequent in the controversies of religion, than to press the same text for opposite tenets ? How then comes it to pass, that two persons may not, with reason and honesty, apprehend what a witness says, to prove one thing in the understandr ing of one, and a contrary thing clearly in the understand- ing of the other? Must, therefore, one of these," asks his Lordship, " merit fine and imprisonment ? " Must, therefore, both of these, I beg leave to ask, merit what is worse than imprisonment and fine ? Must they be exposed, in carts, to public derision, because they act a- part which is common, innocent, unavoidable? Must they suffer all the extremities of hunger and thirst, till, at last, agonizing nature makes the necessary but disgraceful barter of unsufferable punishment for degrading prevari- cation ? Are instruments subscribed by pain, by infamy, and by shame — are these the letters recommendatory,, which our law dispatches, or wishes to dispatch, to the re- motest regions of the globe, in order to concentre in the trial by jury the admiration and imitation of all ? It must, however, be confessed, that though no judicial ' Vaughan, 141. 194 LECTURES ON LAW. determinations, SO far as I know, are precisely in the point: yet the forms of our law, rendered venerable by the im- memorial practice of ages, seem at least to countenance, if not to presuppose,. the principle of unanimity in the trial by jury. When the jury retire, a bailiff is sworn to keep them together till they be agreed of their verdict. When they return to the bar, the first question asked of them is — Are you agreed of your verdict ? This question must be answered in the affirmative, before the verdict can be received. Such are the established forms of the law. They seem to require a unanimous verdict. Every juror swears that he will give a true verdict ac- cording to his evidence. The sacred obligation of this oath demands, that to unanimity truth shall not be made a sacrifice. In this situation are the jury placed. Truth and unanim- ity — qualities very distinct — qualities, on some occasions, seemingly irreconcilable — must unite in the composition of their verdict. To extricate them from such a labyrinth, where the law seems to point to one direction, and their oaths seem to point to another, is there no affectionate hand to furnish them a clue ? What is a verdict ? It is the joint declaration of twelve jurymen upon their oaths. Littleton calls it " the verdict of twelve men." ^ " Veredictum," says my Lord Coke, in his valuable Commentary, " quasi dictum veritatis, as judicium is quasi juris dictum. Et sicut ad qusestionem juris non respondent juratores, sed judices ; sic ad qusestionem facti, non respondent judices, sed juratores." A verdict is a declaration of the fact : a judgment is a declaration of the law. To a question of law the judges, not the jury, shall answer : so, to a question of fact, the jury, not the judges, shall answer. So far the parallel holds exactly 1 1 Ins. 226. OF JURIES. 195 between the duties of judges and of jurors, in their re- spective provinces of law and of fact. So far the parallel holds between a verdict and a judgment. We have seen what a verdict is : it is a joint declara- tion of the jury. What is a judgment ? It is, I appre- hend, the joint declaration of the court. It is not merely a declaration of a majority of the judges : it is the declara- tion of the court. When it is solemnly pronounced, even by a dissenting president, it must be announced as " the judgment of this court " — not as the " judgment of a major- ity of the judges." Why should not the parallel hold, in this instance too, with regard to a jury, except in a case of conviction, which has been already shown to stand upon its own peculiar foundation ? We have seen, that,' in this instance too, the parallel did hold formerly with regard to the jury. We have seen, that the declaration of the majority operated as the verdict of the jury. For some time, indeed, the dissent of the minorit}'- was noticed on the record ; but was it neces- sary to notice that dissent? Was it necessary to continue that practice? Every one knows, that judgments are entered as the acts of the court generally, even when there is a dissenting minority. Why should not the same prac- tice prevail — why should we not presume that the same practice has prevailed, with regard to juries ? On the record, the transactions of the court bear the same stamps of unanimity with the transactions of the jury : whence, then, can it be inferred, that a degree of unanimity is, in reality, required from tlie jurors, which, on all hands, is. acknowledged to be unnecessary in the judges ? Whether, therefore, we consult the suggestions of the- records, or the information of etymology, the inferences of analogy, or the language of adjudications, we shall find no authority to conclude, that, in civil causes, the verdict of a jury must be founded on unanimous opinion. 13 196 LECTURES ON LAW. But recurrence will still be had to those venerable forms, immemorially established, which countenance or presuppose the doctrine of unanimity in the trial by jury. Before a verdict can be received, it will be urged, the jury must declare, that of that verdict they are agreed. Permit me, on this occasion, to have recourse to a con- jecture. I propose it with diffidence : I pursue it witli caution : if my expressions concerning it become sanguine, it shall not be till I think I have established it. My con- jecture is, that by the phrase, " agreed of a verdict," nothing more is meant, than that the jury are willing and prepared to give a verdict ; and by that means, bring to a decision the controversy submitted to them. In early times, a verdict, as we have seen, could not be prevented by the contrary vote or sentiment of one or of a minority of the jurors. The jury was increased till twelve were unanimous ; or the vote of a majority was received as a decision. But the effect of an obstinate refusal to give any vote was very different. We have seen, that all the votes were required to be disposed of on the record ; and that though eleven votes on one side, and one on the other, formed materials for a verdict ; yet eleven votes, unopposed by the dissenting one, were deemed insufficient for that purpose. Those, therefore, who wished to obstruct the administration of justice in the trial by jury, accomplished their wishes by refusing to give any vote on either side. In turbulent times — and the times I allude to were turbulent — this expedient would be often used, by the friends of a powerful usurper in possession, against a legal recovery by him who had right. To restrain and to prevent the pernicious effects of sucli a conduct, every juror was sworn to give a verdict ; the bailiff was sworn to confine him till he should agree to give it; and no declaration was received by the court, OP JURIES. 197 till it was unanimously declared, that, as to the point of giving a verdict, they were all agreed. These observations will throw a new light upon some points, which have been already mentioned. The case of an obstinate juror, of the species now described, hap- pened, as we before noticed, in the eighth year of the reign of Edward the Third. Upon that case, my Lord Chief Justice Vaughan makes the following remarks : " This book," says he, " rightly understood, is law : that he staid his fellows a day and a night, without any reason or as- senting, may be understood, that he would not, at that time, intend the verdict at all, more than if he had been absent from his fellows ; but wilfully not find for either side. In this sense, it was a misdemeanor against his oath; for his oath was truly to try the issue, which he could never do, who resolved not to confer with his fel- lows." " And in this sense," adds he, " it is the same with the case 34 Ed. III. where twelve being sworn, and put together to treat of their verdict, one secretly with- drew himself, and went away, for which he was justly fined and imprisoned ; and it differs not to withdraw from a man's duty, by departing from his fellows ; and to with- draw from it though he stay in the same room : and so is that book to be understood." ^ These remarks corroborate what I have mentioned — that the great object seems to have been to secure a decision, not a unanimous decision, by verdict. For both the cases, just now noticed, happened before that which is alleged to have settled the principle of unanimity. I hope, I have now established my con- jecture. I have asked, " since judgments are entered as the acts of the court generally, when there is a dissenting minority ; why should not the same practice prevail — why should we not presume that the same practice has prevailed, with re- J Vaugh. 151. 198 LECTTJBES ON LA-W. gai'd to juries?" I now go farther, and undertake to evince, that the reason for that practice is much greater, and that, consequently, the presumption in its favor is much stronger, in the case of jurors, than it is in the case of judges. This will appear from a variety of considera- tions. In the turbulent times, to which I allude, the jurors, as we are told by Montesquieu, were obliged to fight either of the parties who might give them the lie. When there was no dissent, or which, as to this poiiit, was the same thing — when no dissent appeared, a party who gave the lie to one, must engage in single combat with each. Their number would render him circumspect. A regard, therefore, to the security of jurors would superinduce every prudent appearance of unanimity in their opinions and verdicts. But this reason applied not to the judges. In times the most civilized and tranquil, it is improper to expose jurors unnecessarily to the concealed resentment of those, who may be affected by the parts they severally take in the juries, of which they are members. This reason is applicable, but not so strongly applicable, to the judges. In this argument, whatever shows a greater reason for preserving the vestiges of diversity in the sentiments of the judges, than in those of the jurors, will have the same effect, as that which shows a greater reason for preserving the appearance of unanimity in the sentiments of the jurors, than in those of the judges. We have seen,^ that " a judge, particularly a judge of the common law, should bear a great regard to the sentiments and decisions of those, who have thought and decided before him." We have seen,^ " that the evidence of facts — and facts are the province of juries — cannot be ascertained, distinguished, or estimated by any system of general rules ; and that, for 1 Ante, p. 159. 2 ^^te, p. 160. OF JURIES. 199 this reason, the evidence of facts must, in every case, depend on circumstances, which to that case are peculiar." The natural consequences from these two positions are, that it might be useful, perhaps material, to preserve, on the record, evidences of the unanimitj'^ or diversity of sentiments, with which judgments are given, so that they may make the slighter or deeper impression on the minds of succeeding judges ; and that such a measure, with regard to verdicts, would be altogether useless and imma- terial ; since every verdict rests on its own peculiar cir- cumstances, without precedent and without example. The result is, that the reasons for apparent unanimity on the record are not so great, nor the presumption arising from them so strong, in the case of judges as in the case of jurors : an apparent unanimity, howevei', is preserved, while a real diversity of sentiment subsists, in the case of judges : there is, therefore, much greater reason to presume, that a real diversity of sentiment may subsist, though, an apparent unanimity be preserved, in the case of juries. It may be naturally asked — ^if this principle of una- nimity in the trial by jury be unfounded; how has it hap- pened, that the opinion of its existence has been so gen- eral and so permanent, not only among the people at large, but even among professional characters ? This has already been accounted for in part. It was prudent to preserve the appearance of unanimity : this uniform appearance would naturally produce and disseminate an opinion that the unanimity was real. Besides, in one species — in the most important species of verdicts — those of conviction in criminal, still more in capital cases — this unanimity, upon the principles which have been explained, was not only apparent, but real and indispensable. Farther ; the awful precedents set by Alfred, to establish the principle of unanimity in this species of verdicts, would naturally make a deep and lasting impression upon all — upon pro- 200 LECTUKES ON LAW. fessional characters as well as upon others. Impressions, deep and lasting, are always diffusive : their influence, therefore, extended beyond those causes, which had origi- nally produced them. Unanimity, confined, in its princi- ple, to verdicts of conviction in criminal cases, was applied indiscriminately to cases and verdicts of every kind — to verdicts of acquittal, as well as to those of conviction — to cases civil, as well as to cases criminal. This subject, so very interesting to juries and to all who, and whose causes, are tried by juries, I have investi- gated minutely and carefully, historically and upon prin- ciple. Of many late dicta I have taken no notice, because they are suspended on those of a more early period. To trace matters to their remotest sources, is the most satis- factory and the most successf id mode of detecting errors, as well as of discovering truths. In doing both, I hope that, on this subject, I have had some success: if so, I shall have much satisfaction ; for I shall have contributed to dispel a cloud, dark and heavy, which has hitherto shaded and hung over the trial by jury, so luminous when beheld in its unintercepted lustre. If I have been successful, many practical advantages will result to parties, to jurors, and to judges. My theory is shortly this. To the conviction of a crime, the undoubt- ing and the unanimous sentiment of the twelve jurors is of indispensable necessity. In civil causes, the sentiment of a majority of the jurors forms the verdict of the jury, in the same manner as the sentiment of a majority of the judges forms the judgment of the court. In many cases, a verdict may, with great propriety, be composed of the separate sentiments of the several jurors, reduced to what may be called their average result. This will be ex- plained. Hitherto, I have said nothing concerning ver- dicts of acquittal in criminal cases. After what has been observed, it is unnecessary to say much concerning them. OP JURIES. 201 If to a verdict of conviction, the undoubted and the unan- imous sentiment of the twelve jurors be of indispensable necessity; the consequence unquestionably is, that a single doubt or a single dissent must produce a verdict of acquittal. Let us now see whether tliis theory, short and plain, may not be reduced to practice, with great security and advantage to parties, to juries, and to judges. In criminal prosecutions, the state or society is always a party. From the necessity of the case, it is also always a judge. For we have seen, that, in the social contract, the party injured transfers to the public his right of pun- ishment, and that, by the public, the party injured agrees to be judged. The state acts by the medium of the selected jury. Can the voice of the state be indicated more strongly, than by the unanimous voice of this selected jury ? Again ; the state, thougli a party on one side, has a deep interest in the party on tlie other side ; for to a well organized state, eveiy citizen is precious. According to the theory which Ave are now trying by its application to practice, the state can lose no precious part of herself, unless on the strongest indication that she herself, if con- sulted on the occasion, would say, immedicabile vulnus Ense recidendum est ; ne pars sincera tralietur. By the practice of this theory, the state will lose no mem- ber by the malice or resentment of a single individual, Ayho, with a constitution as strong as his heart is hard, can. starve his fellow-jurors into a reluctant and prevari- cating verdict of conviction. How stands the other party to a criminal prosecution ? He stands single and unconnected. He is accused of a crime. For his trial on this accusation, he is brought before those who, if he is guilty, represent his offended 202 LECTUUES ON LAW. judge., If it were possible, the characters of party and judge should; be separated altogether. When that is im- possible, the greatest security imaginable should be pro- vided against the dangers, which may result from their union. The greatest security is provided by declaring, and by reducing to practice the declaration, that he shall not suffer, unless the selected body wlio act for his coun- try say unanimously and without hesitation — he deserves to suffer. By this practice, the party accused will be effectually protected from the concealed and poisoned darts of private malice and malignity, and can never suffer but by the voice of his country. By tliis practice, we are led to see the beautiful and exquisite propriety and emphasis of a form, which is used every day in criminal trials; but which is the object of little attention, because it is used every day. When the jury are sworn to tiy a person for a crime, the clerk of the court informs them succinctly of the nature of the charge ; that the prisoner has pleaded to it, that he is not guilty ; that for trial he has put himself upon his country — " whicli country," adds he, " you are." Upon the principles whicli I have stated and explained, a jury, in criminal cases, may, indeed, be called the country of the person accused, and the trial by jury may, indeed, be denominated the trial fe.r, patriam. " In a well tempered government," says the Empress of Russia, in the excellent instructions which she gave con- cerning a code of laws for her extensive empire, " In a well tempered government, no person is deprived of his life,, unless his country rise up against him." ^ Let others know, and teach, and publish, and recommend fine polit- ical principles : it is ours to reduce them to practice. We may now conclude, that the practice of the theoiy, which we have explained, is advantageous and secure for 1 3 War. Bib. 67. OP JURIES. 203 the parties in criminal causes. Let us next examine it in relation to causes of a civil nature. Here, we say, the sentiment of a majority of the jurors forms the verdict of the jury, in the same manner as the sentiment of a major- ity of the judges forms the judgment of tlie court. That the sentiments of the majority shall govern, is, as we before showed at large,i the general rule of society. To this rule we have seen the strongest reason to intro- duce an exception, with regard to verdicts of conviction in criminal prosecutions. Does the same reason extend to civil causes ? We presume not. In civil causes, the jury stand equally indifferent to the parties on either side. As the juridical balance thus hangs in perfect equipoise be- tween them ; it is for their security, and for their advan- tage too, that the scales should clearly indicate the propor- tional weight of law and truth which is thrown into them, and that a preponderancy on the whole should direct the decision. To insist that a jury should be unanimous, is eventually, in many cases, to ordain, that their verdict shall not be the legitimate offspring of free deliberation and candid discussion ; but shall be the spurious brood of strength of constitution and obstinacy of temper. For the advantage and security of the parties this cannot be ; the other must. Let us now consider this subject as it respects juries. From the principle of unanimity, as it has been often understood, he who will be obliged to discharge the im- portant trusts and duties of a juryman has but a comfort- less prospect before him. He must perform the most interesting business of society — he must decide upon fortune, upon character, upon libert}^ upon life : all this he must perform in conjunction with others, whom he does not choose, whom, perhaps, he does not know, witli whom, perhaps, he would not wish to associate ; for • Ante, vol. 1, p. 277. 204 LECTTTEES ON LAW. though jurors are selected, they are not selected by one another: all this, too, he must perform in real or in coun- terfeited unanimity with eleven others, each of whom is summoned and appears on this business under the same untoward circumstances with himself. What must he do ? In the affairs of life, real unanimity among such a number is little to be expected ; least of all is it to be expected in matters which are litigated, and concerning which, if there had been no doubt, it is to be presumed there would have been no controversy. If real unanimity cannot be expected, he must either counterfeit it himself, or he must be an accessory before the fact to the counter- feiting of it by others. The first is the principal, the second is inferior only to the principal degree of 'disin- genuity. Such a situation can never be desirable : on some occasions, it may be dreadful. Let us suppose, that matters are brought to the sad alternative — that a juror must ruin his constitution, or, perhaps, literally starve himself ; or, to avoid immediate death or a languishing life, he must, contrary to his con- science, doom a fellow man and a fellow citizen to die — what must he do ? In this crisis of distress, he prays direction from the laws of his country: the laws of his country, as often understood, tell him — you must starve : for it cannot be insinuated, that the laws will advise him to belie his conscience. He obeys the hard mandate : by the virtue of obedience he loses his life : hj his death the jury are discharged : for now there is a natural, as well as a moral impossibility of obtaining the imanimous ver- dict of twelve men. The former produces what, on eveiy principle of morality and jurisprudence, the latter ought most unquestionably to have produced. But what must be the consequence of the jury's discharge ? Does it dis- charge the person accused ? No. A second jury must sit upon him ; and before that second jury must be brought OF JTJBIES. 205 all those inextricable difficulties, which produced such calamity in the first. Where is this to end ? By the practice of the princi- ples which I have explained, this can never begin. It is no hardship for each juror to speak his genuine and undisguised sentiment. Is it for conviction ? Let him declare it. Let every other, in the same manner, declare his genuine and undisguised sentiment. If the sentiment of every other is for conviction ; the verdict of conviction is unanimous. If a single sentiment is not for conviction ; then a verdict of acquittal is the immediate consequence. To this verdict of acquittal, every one whose private sen- timent was for conviction ought immediately to agree. For by the law, as it has been'stated, twelve votes of con- viction are necessary to compose a verdict of conviction : but eleven votes of conviction and one against it compose a verdict of acquittal. Thus it is as to criminal matters. Under this dispo- sition of things, can an honest and conscientious juror dread or suffer any inconvenience, in discharging his im- portant trust, and performing his important duty, honestly and conscientiously ? Under this disposition of things, will the citizens discover that strong reluctance, which they often and naturally discover, against serving on juries in criminal, especially in capital cases ? Under this disposition of things, will those who have influence with the returning officer, exert that influence to prevent their being returned ; and will those who cannot prevent their being returned, but can pay a fine, pay the fine rather than perform the service ? Under this disposition, will juries, in criminal, especially in capital cases, be composed — as we have seen them too often composed — chiefly of such as have neither influence enough to avoid being returned, nor money enough to pay a fine for their non-attendance ? In civil causes, the business of the jury will be managed 206 LECTUKES ON LAW. and directed in the same manner as the business of the court, and of every other public body. Unanimity will always be acceptable : free and candid discussion will always be used : if they produce unanimity, it is well : if they reach not this high aim, acquiescence will be shown in the sentiment of the majority. This is the conduct of legislators : this is the conduct of judges : why should not this be the conduct of jurors ? 1 mentioned, that, in many cases, a verdict may, with great propriety, be composed of the separate sentiments of tlie several jurors, reduced to what may be called their average result. This I now explain. It has been observed — and the observation has been illus- trated at great length — that, the power of juries is a dis- cretionary power. This discretionary power arises from the nature of their office. Their office is to try the truth of facts : the truth of facts is tried by their evidence : the force of evidence cannot be digested by rules, nor formed into a regular system. In many causes, there can be but two different senti- ments. If, for instance, a suit be brought for the recovery of a horse ; there can be, among the jury, only two opin- ions — that the plaintiff ought, and that he ought not to recover. If there is a majority on either side, the voice of the majority should govern the verdict. If, on each side, there be an equal number of opinions, the verdict should be in favor of the possessor. " Melior est conditio possi- dentis." But there are many other causes, in which twenty different opinions may be entertained, as well as two ; and there is no fixed rule, by which the accuracy or inaccuracy of any one of them can be ascertained. An action of slander, for instance, is brouglit by a young woman to re- cover damages for an injury, which she has sustained by the defamation of her character. A variety of opinions OF JURIES. 207 may be formed, without end, concerning the particular sum which she ought to recover. Each of those various opinions may be composed from a variety of combining cir- cumstances, the precise force of any of which can never be liquidated by any known methods of calculation. Those com- bining circumstances will arise from the situation and char- acter of the plaintiff, from the situation and character of the defendant, from the nature and kind of the injury, and from the nature and extent of the loss. In the mind of each of the jurors, according to his situation and character, eacli of 'ijiose combining circumstances may produce an effect different from tliat which is produced by them in the mind of every other juror. The opinions, which are composed of those circumstances operating thus differently, must, of ne'cessity, be different. Each juror forms his own. The opinion of each has an equal title to regard. How shall a verdict be collected from twelve opinions, no two of which are the same ? Let each pronounce the particular sum, which, he thinks, the plaintiff ought to recover : let the sums be added together : let the amount of the whole be divided by twelve : let the sum produced by this division form the verdict of the jury. In this manner I explain what I mean by a verdict, " composed of the separate senti- ments of the several jurors, reduced to what maybe called their average result." This mode of forming a verdict will, on many occasions, be found useful and satis- iactorj. Let us, in the last place, consider this subject as it re- gards judges. Judges do not, indeed, undergo, but, with melancholy, sympathetic feelings, they are obliged to 'witness — nay, they are obliged to be instrumental in — the feelings which jurors undergo, from the principle and the practice of unanimity, as it is frequently understood. How natural is it for a jurj^ worn down by thirst and hunger, and want of sleep, distracted by altercations and 208 LECTURES ON LAW. debates, bewildered by the difficulties and embarrassments by which those debates and altercations were produced — how natural is it for them to fly, for relief and instruc- tion, to the court ! Before the court they appear, pale, anx- ious, dejected ; and beg the court to instruct and relieve them. On the principle of unanimity, as often received, what can the court do or advise ? If they are well dis- posed — and we will presume them vk^ell disposed — they will, with every mark of compassionate attention and regard^ advise them to do — what, if they could have done, there would have been no application for advice — " gentlemen, we advise you to agree : return to your chamber ; confer together ; reason together ; come to an agreement ; for you must agree ; otherwise we cannot re- ceive your verdict." I have presumed the court to be well disposed : for this presumption, there is not always a sufficient ground. In the celebrated trial of William Penn and William Meade, four of the jurors dissented from the others. The recorder of London, before whom the cause was tried, addressing him- self to Mr. Bushel, one of the four dissenters, said, Sir, you are the cause of this disturbance, and manifestly show yourself an abettor of faction ; I shall set a mark on you, Sir. Gentlemen, said he to the whole jury, 5'ou shall not be dismissed, till we have a verdict that the court will ac- cept ; and you shall be locked up without meat, drink, fire, and tobacco : we will have a verdict, by the help of God, or you shall starve for it.^ But I have presumed the court to be well disposed. If tliey really are so, their situation is, indeed, a distressful one. They see before them a body of men, intrusted by • their country with the greatest and most interesting powers : in the execution of this high trust, they see them suffering, though not offending: from those unmerited 1 2 St. Tr. 613, 614. OF JUKIES. 209 sufferings, they feel themselves altogether incapable of affording relief. What, in this situation, is left to the court? The alternate emotions of compassion and re- gret — compassion for those, whom they cannot aid — re- gret, because they cannot aid them. By reducing to practice the theory, which I have stated and explained, the judges will be disburthened of all that uneasiness, under which they otherwise must labor ; and will, on every occasion, have it in their power to relieve and advise satisfactorily every jury, who may apply to them for advice and relief. Is the jury sitting in a criminal cause ? Are they at a loss what to do ? Do they pray the direction of the court ? The court may give them a series of directions, which, one would imagine, must contain a remedy for every complaint. — Gentlemen, each of you must know the state of his own mind. Each of you must be clearly of opinion that the prisoner ought to be convicted, or that he ought to be acquitted ; or you must be doubtful what opinion you must form. If the first be the case, you ought to vote for a conviction : if either of the two last be the case, you ought to- vote for an acquittal. What we say in the case of one, we say in the case of every one. Let every one, therefore; govern his own vote by these directions. When the vote of each is formed ; the next step is to compose the veidict of all from the vote of each. Let the votes, then, be taken: they must be either unani- mous or not unanimous : if they are not unanimous, let all agree to a verdict of acquittal : if they are unanimous, they must be unanimous for acquittal, or for conviction : if the former, the verdict is a verdict of acquittal : if the latter, the verdict is a verdict of conviction. Is the jury sitting in a civil cause ? Are they, in tliis cause too, at a loss what to do ? Do they pray the direc- tion of the court ? The court may, in this cause too, give 210 LECTXJEES OK LAW. tliem a series of satisfactory directions. — Gentlemen, can' only two opinions be entertained concerning the cause be- fore you ? If so ; after freely and candidly discussing the matter by friendly conference among yourselves, let each make up his own opinion : let all the opinions be collected : if there be a majority on either side, let all agree to a ver- dict in favor of that side : if there is an equality of votes on each side, let the verdict be given in favor of posses- sion. May any indefinite number of opinions be enter- tained concerning tlie cause before you ? Let each jury form his own : let the verdict consist of the average result of all. I trust, I have now shown, that, by reducing to practice the theory, which I have advanced on the subject of una- nimity in jury trials, many solid advantages would result from it to judges, to juries, and to parties. I trust, I have established this theory on every pillar on which a legal theory can be built — on precedent — on authority — on prin-' ciple. ' To all the nations, which swarmed from the northern' hive, the trial by jury was common : to none of them, the' principle of unanimity was known. I here finish what, at present, I propose to say, concern ing the doctrine of unanimity in the trial by jury. Of juries there are two kinds ; a grand jury, and a tra- verse jury. The institution of the grand jury, is, 'at least in the present times, the peculiar boast of the common law. In the annals of tlie world, there cannot be found an institution so well fitted for avoiding abuses, which miglit otherwise arise from malice, from rigor, from negligence, or from partiality, in the prosecution of crimes. In Athens, we can discover the vestiges of an institu- tion, which bears a resemblance, though a very slight one, to that of grand juries. There was among them a pre- OF JURIES. 211 Tious inquiry before that trial, in which the final sentence •was pronounced. In cases of murder, the relations o{ the deceased alone had a right to prosecute.^ There is an evident resem- blance between this regulation, and that part of the law of England, which relates to prosecutions by appeal. When crimes were committed immediately against the government of Athens, every citizen might step forward as the prosecutor, for an injury offered to the common- wealth was considered as personal to each of its members. Among the Romans, too, any one of the citizens was permitted to prosecute , a public offence. With all our predilection, however, for those celebrated republics, we must admit, that these regulations were extremely injudi- cious, and produced mischiefs of very dangerous, though of' very opposite kinds. Prosecutions were, on some occasions, undertaken from motives of rancor and re- venge. On other occasions, a friend, a dependent, per- haps a confederate, of the criminal officiously engaged to prosecute him, with a view to ensure his impunity. Of this we have a remarkable instance, in the case of the in- famous Verres. Coecilius, his creature and associate, dis- puted with Cicero the right of accusing him. The pref- erence was adjudged to Cicero, in a process known by the name of divination. There was a time, says Beccaria, when the crimes of the subjects were the inheritance of the prince.^ At such a time probably it was that the judge himself became the prosecutor. In several of the feudal nations, this was, in- deed, the case. The gross impropriety of this regulation appears at the first view. The prosecutor is a party: without the last necessity, the prosecutor ought not to be both a party and a judge. Among the Saxons, as we are informed by Mr. Selden, 1 2 Gog. Or. L, 71. = Bee. c. 17. 14 212 LECTURES ON LAW. besides the satisfaction recovered by the party injured, there was a way found out to punish the offender by in- dictment. The difference, adds he, between former in- dictments and those in these days, consists in this, that the ancient indictments were in the name of one man ; those of the latter sort are in the name of the jury. Time and experience, continues he, refined this way of trial into a more excellent condition.^ In the reign of Henry the Third, the presentment of offences was made by a jury of twelve, returned for every hundred in the county. But towards the latter end of the reign of Edward the Third, another improvement was in- troduced into the institution of grand juries. Besides the jury for every hundred, the sheriff returned a jury for the county, which was termed " the grand inquest." When this grand inquest inquired for the whole body of the county, the business of the hundred inquest, and the whole trust and duty of making presentments and finding in- dictments, naturally devolved upon the grand jury.^ A presentment is an accusation brought forward by the grand jury of their own mere motion. An indictment is a particular charge laid, by the public prosecutor, before the grand jury, and found by them to be true. The trust reposed in grand juries is of great and general concernment. To them is committed the custody of the portals of the law, that into the hallowed dome no injustice may be permitted to enter. They make, in the first in- stance, the important discrimination between the innocent and the guilty. To the former, they give a passport of security : the latter they consign to a final trial by a traverse jury. The manner, in which grand juries ought to make their inquiries, well deserves to be attentively considered. It has been declared by some, that grand juries are only to ' Bac. on Gov. 53, 54, 57. « 2 Keev. 210, 211. OF JURIES. 213 inquire, "• whether what they hear be any reason to put the party to answer" — -"that a probable cause to call him to answer, is as much as is required by law." But, indeed, such a declaration is very little consonant to the oath — the best evidence of the law — which every grand juryman is obliged to take. He swears, that he will inquire dili- gentlj'. As little is such a declaration consonant to ancient authority and practice. " Tn those days," says my Lord Coke,^ speaking of the reign of Edward the First — " in those days (as yet it ought to be) indictments, taken in the absence of the party, were formed upOn plain and direct proof, and not upon probabilities or inferences." Still as little is such a declaration consonant to the voice of reason and sound sense. An indictment has been styled, and with no small degree of propriety, the verdict of the grand jury. " It ought to import all the truth which is requisite by law ; and every part material ought to be found by the oath of the indictors." Now, is it consistent with reason or sound sense, that a verdict found upon oath — upon an oath to make diligent inquiry — should be the vague, per- haps the visionary, tesult merely of probabilitj- ? Ought not moral certainty be deemed the necessary basis of what is delivered, under the sanction of an obligation so solemn and so strict? The doctrine, that a grand jury may rest satisfied merely with probabilities, is a doctrine dangerous as well as un- founded : it is a doctrine, which may be applied to counte- nance and promote the vilest and most oppressive purposes: it may be used, in pernicious rotation, as a snare in which the innocent may be entrapped, and as a screen, under the cover of which the guilty may escape. It has been alleged, that grand juries are confined, in their inquiries, to the bills offered to tliem, to the crimes given them in charge, and to the evidence brought before 1 2 Ins. 384. 214 LECTUKES ON LAW. them by the prosecutor. But these conceptions are much too contracted : they present but a very imperfect and un- satisfactory view of the dutj'- required from grand jurors, and of the trust reposed in them. They are not appointed for the prosecutor or for the court : they are appointed for the government and for the people : and of both the gov- ernment and people it is surely the concernment, that, on one hand, all crimes, whether given or not given in charge, whether described or not described with professional skill, should receive the punishment, which the law denounces ; and that, on the other hand, innocence, however strongly assailed by accusations drawn up in regular form, and by accusers marshalled in legal array, should, on full investi- gation, be secure in that protection, which the law engages that she shall enjoy inviolate. The oath of a grand juryman — and his oath is the com- mission, under which he acts — assigns no limits, except those marked by diligence itself, to the course of his in- quiries: why, then, should it be circumscribed by more contracted boundaries ? Shall diligent inquiry be en- joined ? And shall the means and opportunities of inquiry be prohibited or restrained ? The grand jury are a great channel of communication, between those who make and administer the laws, and those for whom the laws are made and administered. All the operations of government, and of its ministers and officers, are within the compass of their view and research. They may suggest public improvements and the modes of removing public inconveniences : they may expose to public inspection, or to public punishment, public bad men, and public bad measures. The relative powers of courts and juries form an in- teresting subject of inquiry. Concerning it, different opinions have been entertained ; and it is of much con- sequence, in the study and in the practice too of the law, OP JTTEIES. 215 that it be clearly and fully understood. I shall treat it in the same manner, in which I have treated other ques- tions of great importance : I shall examine it historically and on principle. From a statute made in the thirteenth year of Edward the First, usually called the statute of Westminster the second,^ it appears, that the contest between judges and juries con- cerning their relative powers ran, at that time, in a direc- tion very different from that which it has taken since. The judges, then, were disposed to compel the jury to find the law as well as the fact : the jury were disposed to show the truth of the fact only, and to refer to the court the determination of the law. The statute interposed, and declared the discretionary power of the jury to do which of the two they thought most proper. " It is ordained, that the justices assigned to take assizes shall not compel the jurors to say precisely, whether it is or is not a dis- seisin." A general verdict of this kind included the ques- tion of law as well as the question of fact. " It is suffi- cient that they show the truth of the fact, and pray the assistance of the justices. But if they will voluntarily say, whether it is or is not a disseisin, their verdict shall be received at their own peril." This statute recognized the law as it then stood, but introduced no new law. We are informed by mj Lord Coke, in his commentary on it,^ that in all actions, real, personal, and mixed, and upon all issues joined, general, or special, the jury might find the special matter of fact perti- nent and tending only to the issue joined, and might j)ray the discretion of the court for the law. This the jurors might do at the common law, not only in cases between party and party, of which the statute puts an example of the assize ; but also in pleas of the crown at the suit of the king. This statute, therefore, like man}' others of the 1 C. 30. ' 2 Ins. 425. 216 LECTURES ON LAW. ancient statutes, is only in affirmance of the common lavv.^ Bracton, who wrote in the reign of Henry the Third, tells us,^ that a distinction was commonly taken between the provinces of the judges and jurors in this manner — truth is to be displayed by the jury ; justice and judgment by the court. Yet, says he, it seems that judgment some- times belongs to the jurors, when they declare upon their oath, whether such a one disseised or did not disseise sucl; a one ; according to which declaration, the judgment of the court is rendered. But, adds he, as it belongs to the judges to pronounce a just judgment, it is incumbent on them diligently to weigli and examine what is said by the jury, that they themselves may not be misled by the jury's mistakes. We have the high authority of Littleton, that, in cases where the jury may give their verdict at large — in other words, a special verdict, stating the facts, and praj'ing the decision of the court as to the law — they may, if they will take upon them the knowledge of the law, give their verdict generally, as is put in their charge.^ In a case determined in the reign of Queen Elizabeth, it was objected, that a jury could not give a special ver- dict upon a special and collateral issue ; but that, in such case, the jury ought to give a precise and categorical answer to the question arising from such special issue. It was resolved, however, unanimously by the court, that the law will not compel the jurors to take upon them the knowledge of points in law, either in cases of property, or in those which concern life ; and that it will not compel even the judges to give their opinions of questions and doubts in law upon the sudden ; but, in such cases, the truth of the facts should- be found ; and, after considera- 1 9 Rep. J3. ^ Bract. 186 b. ' Lit. s. 368. 1 Ins. 228. OF JURIES. 217 tion and conference, the question should be determined according to the law.^ In the famous trial of John Lilburne, for publishijig a book, entitled, an impeachment of high treason against Oliver Cromwell, we hear a language, very different from that, to which we have hitherto been accustomed. " Let all the hearers know " — said Mr. Justice Jermin, a judge of the upper bench, as it was called during the common- wealth, and who was one of the commissioneis appointed in the extraordinary commission of oyer and terminer for the trial of Mr. Lilburne — " Let all the hearers know, the jury ought to take notice of it, that the judges, that are sworn, that are twelve in number, they have ever been the judges of the law, from the first time that ever we can read or hear that the law was truly expressed in Eng- land : and the jury are only judges, whether such a thing were done or no ; they are only judges of matter of fact." ^ Lord Commissioiier Keble delivers it as the opinion of the court, that " the jury ai-e judges of matter of fact alto- gether ; but that they are not judges of matter of law." * The prisoner urged the authority of my Lord Coke, that the jury were judges of the law as well as of the fact ; but, by a mistake, mentioned the book as a commentary upon Plowden instead of Littleton. The court told him there was no such book ; that they knew it a little better than he did. He pressed to read it ; and said that it was an easy matter for an abler man than him, in so many inter- ruptions as he met with, to mistake Plowden for Littleton. " You cannot " — these are the words of Judge Jermin, as mentioned in the report of the trial — " you cannot be suf- fered to read the law : you have broached an erroneous opinion, that the jury are the judges of the law, which is enough to destroy all the law in the land ; there was never > 9 Rep. 11, b. 13. » 2 St. Tri: 19. « Id. 69. 218 LECTTJEES ON LAW. such a damnable heresy broached in this nation before." * Mr. Lilburne persisted, however, and read his authorities. " Extremes in nature equal ends produce." As were some of the judges under Cromwell, so were some of the judges under Charles the Second. We have had occasion to take some notice of the trial of William Penn and Wil- liam Meade. The jury, at last, agreed on a verdict of acquittal. This verdict the court could not refuse ; but they fined each of the jurors forty marks for giving it, "because it was against the direction of the court in matter of law." ^ The jurors were imprisoned till they should pay the fines. Mr. Bushell, one of them, sued a writ of habeas corpus out of the court of common pleas. His case was heard and determined there ; and the cause of commitment was adjudged to be insufficient, and Mr. Bushell was discharged. To what end — said Lord Chief Justice Vaughan, in delivering the opinion of the court — to what end are jurors challenged so scrupulously to the array and the poll ? To what end must they be true and lawful men, and not of affinity with the parties concerned? To what end must they have, in many cases, the view, for their exacter in- formation chiefly ? To what end must they undergo the heavy punishment of the villainous judgment ; if after all this, they must implicitly give a verdict by the dictates and authority of another man, under pain of fines and im- prisonment, when sworn to do it according to the best of their own knowledge ? A man cannot see by another's eye, nor hear by another's ear ; no more can a man con- clude or infer the thing to be resolved, by another's under- standing or reasoning. Upon all general issues, the jury find not the fact of every case by itself, leaving the law to the court ; but find for the plaintiff or defendant upon the issue tried, where- 1 2 St. Tri. 69. •' Vaugh. 136. OF JUEIES. 21& in they resolve both law and fact complicately, and not the fact by itself.* In every case, says the late Sir Michael Foster, where the point turneth upon the question, whether the homicide w^s committed wilfully and maliciously, or under circum- stances justifying, excusing, or alleviating ; the matter of fact, to wit, whether the facts alleged by way of justifica- tion, excuse, or alleviation be true, is the proper and onlj' province of the jury. But whether, upon a supposition of the truth of the facts, such homicide be justified, excused, or alleviated, must be submitted to the judgment of the court.^ It is of the greatest consequence, says my Lord Hard- wicke, to the law of England, that the powers of the judges and jury be kept distinct : that the judges deter- mine the law, and that the jury determine the fact.^ This well-known division between their provinces has been long recognized and established. When the ques- tion of law and the question of fact can be decided sepa- rately ; there is no doubt or difficulty in saying, by whom the separate decision shall be made. If, between the parties litigant, there is no contention concerning the facts, but an issue is joined upon a question of law, as is the case in a demurrer ; the determination of this question and the trial of this issue, belongs exclusively to the judges. On the other hand, when there is no question, concerning the law, and the controversy between the parties depends entirely upon a matter of fact ; the deter- mination of this matter, brought to an issue, belongs ex- clusively to the jury. But, in many cases, the question of 1 Vaugh. 148, 150. [The lecturer's opinion is clear upon sucli a ques- tion as the constitutionality of a law. In such a case the jury should not question the correctness of the judge's charge, though it has been held that the jury might exercise that power.] 2 Fost. 255. ' Hardw. 28. .220 LKCTUUES ON LAW. law is iivtimately and inseparably blended with the ques- tion of fact : and when this is the case, the decision of one necessarily involves the decision of the other. When this is the case, it is incumbent on the judges to inform the jury concerning the law ; and it is incumbent on the jury to pay much regard to the information, which they re- ceive from the judges. But now the difficulty, in this in- teresting subject, begins to press upon us. Suppose that, after all the precautions taken to avoid it, a difference of sentiment takes place between the judges and the jury, with regard to a point of law : suppose the law and the fact to be so closely interwoven, that a determination of ■one must, at the same time, embrace the determination of the other : suppose a matter of this description to come in trial before a jury — what must the jury do? — The jury must do their duty, and their whole duty: they must ■decide the law as well as the fact.^ P The question here discussed presents an iniierent difficulty. It is ■conceded by all that in a certain sense the jury are judges of the law ; in another sense they are not, hence the difficulty of expressing the true lines of distinction. What rule of law prevails abstractly considered is seldom a difficult question, and it is very rare that a criminal case involves such a question. When the question of law can be separated from the fact the lecturer's opinion is clear, and has obtained that the judge must decide it, and it is the duty of the jury to receive his opinion and follow it ; but when the question is one of guilt generally, when law and fact cannot be clearly separated, then the jury may decide upon the law. This also seems to be clear ground. So Judge Curtis, in his opinion in the case of the U. S. v. Morris, •which is so much referred to, is careful to say that the jury are the sole judges of the application of the law to the particular case. " In this sense, I believe " (he says) " theirs is the duty to pass on the law — a most impor- tant and difficult duty — which, when discharged, makes the difference between a general and a special verdict, which, although they may return •they are not bound to return." 1 Curtis, Civ. Ct. Rep. 23 ; same case, "Great Opinions by Great Judges, p. 551. It is common for judges to instruct juries that while they are judges of the law as well as of the facts, they ought to take the law from the court unless they can say upon their oaths that they knew the law better or JUKIKS. 221 This doctrine is peculiarly applicable to criminal cases ; :and. from them, indeed, derives its peculiar importance. When a person is to be tried for a crime, the accusation •charges against him, not only the particular fact which he lias committed, but also the motive, to which it owed its ■origin, and from which it receives its complexion. The first is neither the only, nor the principal object of exam- ination and discussion. On the second, depends the inno- cence or criminality of the action. The verdict must decide nol only upon the first, but also, and principally, upon the second : for the verdict must be coextensive and commensurate with the charge. It may seem, at first view, to be somewhat extraordi- nary, that twelve men, untutored in the study of juris- prudence, should be the ultimate interpreters of the law, with a power to overrule the dii'ections of the judges, who have made it the subject of their long and elaborate re- searches, and have been raised to the seat of judgment for their professional abilities and skill. But a deeper examination of the subject will reconcile us to what, at first, may appear incongruous. In criminal cases, the design, as has been already intimated, is closely interwoven with the transaction ; and the elucidation of both depends on a collected view of particulars, arising not only from the testimony, but also from the character than the court does. Such a charge is, to say the least, putting the case too strongly. The charge should be limited to the law of " this particu- lar case," and the courts should be careful not to lose sight of the vari- ous phases in which a question of law may arise. As a practical ques- tion the jury will seldom disregard the charge of the jury as to the law. There may be cases arise when the judge seeks to compel a jury to render a particular verdict, and instances have occurred when judges have fined jurors for refusing to find a particular general verdict. It is believed by the editor no such power of compulsion exists. See the re- marks of the editor of Great Speeches by Great .Judges, p. 551, when he cites Bushnell's case. The text is cited in the opinion of the judge la Commonwealth v. Antheis, 5 Gray, Mass. Rep. 198.] 222 LECTtJKES ON LAW. and conduct of the witnesses, and sometimes also from the character and conduct of the prisoner. Of all these, the jury are fittest to malce the proper comparison and esti- mate ; and, therefore, it is most eligible to leave it to them,, after receiving the direction of the court in matters of law, to take into their consideration all the circumstances of the case, the intention as well as the facts, and to deter- mine, upon the whole, whether tlie prisoner has or has not been guilty of the crime, with which he is charged. Juries undoubtedly may make mistakes: they may commit errors : they may commit gross ones. But changed as they constantly are, their errors and mistakes- can never grow into a dangerous system. The native up- rightness of their sentiments will not be bent under the weight of precedent and authority. The esprit du corp* will not be introduced among them ; nor will society ex- perience from them those mischiefs, of which the esprit du corps, unchecked, is sometimes productive. Besides, their rnistakes and their errors, except the venial ones on the side of mercy made by traverse juries, are not without redress. Of an indictment found by a grand jury, the person indicted may be acquitted on his trial. If a bill be returned " ignoramus " improperly, the accusation may be renewed before another grand jury. With regard to the traverse jury, the court, if dissatisfied with their verdict, have the power, and will exercise the power, of granting a new trial. This power, while it prevents or corrects the effects of their errors, preserves the jurisdiction of juries unimpaired. The cause is not evoked before a tribunal of another kind. A jury of the country — an abstract, as it has been called, of the citizens at large, — summoned,. selected, impanelled, and sworn as tlie former, must stilL decide. One thing, however, must not escape our attention. In the cases and on the principles, which Ave have men- OF JURIES. 223 tioned, jurors possess the power of determining legal questions. But they must determine those questions, as judges must determine them, according to law. The dis- cretionary powers of jurors find no place for exertion here. Those powers they possess as triers of facts ; because, as we have already observed, the trial of facts depends on evidence ; and because the force of evidence cannot be ascertained by any general system of rules. But law, particularly the common law, is governed by precedents, and customs, and authorities, and maxims: those prece- dents, and customs, and authorities, and maxims are alike obligatory upon jurors as upon judges, in deciding ques- tions of law. True it is, according to the sentiment of my Lord Hard- wicke, that it is of the greatest consequence to preserve the separate and distinct powers of the judges and the juries. But equally true it is, that those separate and dis- tinct powers may be rendered reciprocally beneficial, by the most pleasing and harmonious co-operation. In favor of a conclusion of this kind, the conduct of juries bears ample testimony. The examples of their resisting the advice of a judge, in points of law, are rare, except where they have been provoked into such an oppo- sition by the grossness of his own misconduct, or betrayed into an unjust suspicion of his integrity by the misrepre- sentation of others. In civil cases, juries almost univer- ally find a special verdict, as often as the judges recom- mend it to them. In criminal cases, indeed, special verdicts are less frequent : but this happens, not because juries have an aversion to them, but because such cases depend more on the evidence of facts, than on any diffi- culties arising in points of law. Nor is it a small merit in this arrangement, that, by means of it, every one who is accused of a crime majv on his plea of " not guilty," enjoy the advantages of a 224 LECTURES ON LAW. trial, in which the judges and tlie jury are to one another- a mutual check, and a mutual assistance. This point deserves from us a full illustration. Some things appear, at the first view, to be alike,, which, upon a close inspection, are found to be materially different. To a superficial observer, no very important distinction would seem to arise, between the credibility and the competency of evidence. Between them, how- ever, a most important distinction subsists. They spring from different sources ; they run in different directions ;; and, in the division of power between the court and the- jury, they are, with great propriety, allotted to different provinces. In some instances, indeed, the line of division is scarcely perceptible ; but, even in those instances, the- law points out a proper mode of management. Evidence is of two kinds, written and oral. In eachi kind, the important distinction between its competency and its credibility takes place. In oral evidence, however,, or the testimony of witnesses, the distinction is the most important ; and, for this reason, it should be clearly known and strictly preserved. The excellency of the trial by jury, says the great and' good^Lord Chief Justice Hale, is, that they are the triers- of the credit of the witnesses, as well as the truth of the fact : it is one thing whether a witness is admissible to be heard : whether, when he is heard, he is to be believed, is- another thing .^ It is a known distinction, says Lord Chief Justice- Willes, in a very celebrated cause, that the evidence,, though admitted, must still be left to the persons who try the causes, to give what credit to it they please.^ That I may observe it once for all, says Lord Chief Justice Hale, in another place, the exceptions to a witness are of two kinds. 1. Exceptions to the credit of the- 1 1 Hale, P. C. 6-35. ^ j ^^tk. 45, OmycUund r. Barker. OF Jur.iES. 225>' witness, which do not at all disable him from being sworn» but yet may blemish the credibility of his testimony ; in such case, the witness is to be allowed, but the credit of his testimony is left to the jury, who are judges of the fact, and likewise of the probability or improbability, cred- ibility or incredibility, of the witness and his testimony ; these exceptions are of such great variety and multiplicity, that they cannot easily be reduced under rules or in- stances. 2. Exceptions to the competency of the witness,, which exclude him from giving his testimony: and of these exceptions the court is the judge.^ The writers on the civil law, to which the trial by jury has, for many ages, been unknown, have attempted tO' reduce the credibility and incredibility of testimony under rules and instances : but their attempts have shown, what,, indeed, has been likewise shown from the nature of the thing, that such a reduction is not only not easy, as my Lord Hale says, but is altogether and absolutely imprac- ticable. Evidence is, by those civilians, distinguished into- different degrees — into full probation ; into probation less than full ; into half probation. The deficiency in half probation is made up, sometimes by torture, sometimes by the supple tory oath of the party. Concerning circum- stantial proofs, rules, unsatisfactory because unfounded,, have been heaped upon rules, volumes have been heaped upon volumes, and evidence has been added, and divided,, and subtracted, and Multiplied, like pounds, and shillings^ and pence, and farthings. In the parliament of Toulouse,, we are told by Voltaire,^ they admitted of quarters and eighths of a proof. For instance, one hearsay was con- sidered as a quarter ; another hearsay, more vague, as an eighth ; so that eight vague liearsays, which, in fact, are no more than the reverberated echoes of a report, perhaps- ' i Hale, P. C. 276. '' Com. ou Bee. c. 22. 226 LBCTUKES ON LAW. originall}' groundless, constitute a full proof. Upon this principle it was, that poor Galas was condemned to the wheel. Evidence is that which produces belief. Belief is a simple act of the mind, more easily experienced than described. Its degrees of strength or weakness cannot, like those of heat and cold, be ascertained by the precise scale of an artificial thermometer. Their effects, how- ever, are naturally felt and distinguished by a sound and healthful mind.^ With great propriety, therefore, the com- mon law forbears to attempt a scale or system of rules, concerning the force or credibility of evidence : it wisely leaves them to the unbiassed and unadulterated sentiments and impressions of the jury. But with regard to the propriety or competency of evidence, the case is very different. This subject is susceptible of system and of rule. This subject, therefore, is wisely committed to the information and experience of the judges. The most general and the most conspicuous rule with regard to the competency of evidence, is, that the best, of which the nature of the fact in question is capable, must be produced, if it can be produced: if it cannot be pro- duced, then the best evidence, which can be obtained, shall be admitted. Both the parts of this rule are founded on the most solid reason. To reject, as incom- petent, the strongest evidence which can be procured, would be rigid, and unaccommodating to the various vicissi- tudes of life and business. To admit an inferior kind of evidence, when evidence of a superior nature is withheld, would prevent that degree of satisfaction in the minds of the jurors, which evidence should be fitted to produce. [1 The rule that jurors are the judges of the weight of the evidence renders any strict rules as to degrees of weight to be given to different evidence Impracticable ; and no artificial rules in relation thereto have been established by the common law.] OF JURIES. 227 Evidence produces belief : the strongest evidence produces the strongest belief: why is the strongest evidence with- lield? The party, in whose power it is, can have no motive for withholding it, unless he is conscious that it would disclose something, which his interest requires to be concealed. The satisfactory administration of justice, therefore, demands, that it should be laid before the jurJ^ The application of this rule is most extensive. What •ought or ought not to be presumed in the power of the party, must be collected by a full and intimate knowledge or information concerning the business and transactions ■of life. The most authentic materials of information and knowledge are furnished by juridical history — a subject •deservedly the professional study of judges of the common law. Another rule, of high import in the administration of justice, is, that evidence, in oi'der to be admitted, must have a proper degree of connection with the question to be tried : in legal language, it must be pei'tinent to the issue.^ A variety of evidence, unconnected with the point specified by the record for the examination of the jury, would have a tendency to bewilder their minds, and to prevent that strict and undivided attention, which is so indispensable to the satisfactory investigation of that, which they are empowered and intrusted to decide. The evidence proper to be given in each of the numer- ous kinds of issues, which come before a jury, forms a very interesting portion of legal knowledge. At present, we can only show the principle and the importance of that P This is what is termed in law relevancy. Legal authors are not agreed upon all points in relation to relevancy ; not all evidence which relates to the fact in issue is admissihle. There must be a sufficient con- nection to warrant some weight to be given to the testimony offered as to rendering the point in issue probable. Thus far the judge does pass upon the weight and effect of evidence — that is, he must decide whether it has sufficient relation to the fact to be worthy of consideration.] 15 228 LBCTUEES ON LAW accuracy, which the law requires in the admission of evidence. The preservation of this accuracy is fitly com- mitted to the experience of the judges. With regard to oral evidence, or the testimony of wit- nesses, the rule of the law is, that proper testimonj^ may be received from the mouth of every intelligent person, who is not infamous or interested. Concerning the points of intelligence, of infamy, and of interestedness, a great variety of rules are established by the law. To apply those rules to cases which occur in the course of practice, is, with obvious propriety, allotted to the judges. In one of those subjects, however— I mean the interest of witnesses — the line of division, between the province of the judges and that of the jury, is faintly, marked, and difficult to be ascertained. The degrees of interest are so numerous, and the effects of the same degree of interest upon different characters and in different situa- .tions are so diversified, that it is impracticable, in many instances, to define exactly the precise boundary, at which the question of competency ends,, and the question of credibility begins. In doubtful cases of this description, the judges, especially of late years, presume in favor of the province of the jury. This is done with great reason. For an objection, urged, without success, against the com- petency of a witness, may be urged successfully against the credibility of his testimony ; and to the objecting party it is altogether immaterial, whether the testimony of the witness is rejected or disbelieved. When an objec- tion, says my Lord Hardwicke, is made against a witness,, it is best to restrain it to his credit, unless it is like to introduce great perjury ; because it tends to let in light to the cause. ^ ^ Hardw. 360. [A great deal of evidence which is clearly relevant is excluded upon the ground of public policy, and witnesses are frequently excluded upon the same ground.] OF JURIES. 229 111 arranging and in summing up the evidence, the court, from their knowledge and experience of business, can give great assistance to the jury. In questions of law emerging from the evidence, the assistance of the court is still more necessary and essential. Lord Chief Justice Hale observes, that a judge may be of much ad- vantage to the jury, by showing them liis opinion even in matter of fact.^ Of the sentiment of a judge so exemplary in his delicacy as well as in his candor, I risk not the disapprobation ; but I add, that this power can never be exercised with a reserve too cautious. We have seen, by a number of instances, how, in the administration of justice, the juiy receive assistance from the judges. Let us now see how the judges receive assis-t- ance from the jury. " Ex facto oritur jus." The jury lay the foundation of truth, on which the judges erect the superstructure of law- A correct statement of the facts, every professional gen- tleman knows, is necessary to an accurate report. A true verdict given by the jury, is an essential prerequisite to a just judgment pronounced by the court. Judgments in supposed cases may abundantly evince professional skill ; but they will never have a decisive influence over society — they will never come home to the business and bosoms of the citizens — unless they are practically founded on the manners, and characters, and rights of men. The man- ners, the characters, and the rights of men are truly and practically reported by the verdicts of juries. To judges of a proper disposition, the assistance of juries is soothing as well as salutary. In criminal cases^ As showing that public policy is an uncertain rule varying in the minds of different men, we need only consider the modern statutes removing the disability of witnesses on the ground of interest and permitting parties to testify. The present tendency is towards removing the objections to. evidence, and the natural result is to increase the difficulty of decision.] ^ Hale, Hist. 256. 230 LECTTJEES ON LAW. it is unquestionably so. " To say the truth " — I use the language of the humane Lord Chief Justice Hale — " it were the most unhappy case that could be to the judge, if he, at his peril, must take upon him the guilt or innocence of the prisoner, and if the judge's opinion must rule the niatter of fact." ^ Take upon him the guilt or innocence of the piisoner ! It may be soothing, indeed, to judges to be relieved from this mental burthen, of all the most anxious ; but upon whom — methinks I hear a citizen ask — upon whom must this most anxious of all mental burthens be laid? How must it be borne by those on whom it is laid ? This very serious and momentous question brings be- fore us the trial by jury in a view, the sublimity of which I have often admired in silence ; but which now — though I feel myself far inferior to the task — I must endeavor to describe and explain. I solicit your candid indulgence, while I attempt to delineate the particulars, of which this prospect, magnificent and interesting, is composed; and then try, with unequal efforts, to convey the impression which naturally will result from the combination of the whole. It will be necessary to review some principles, of which notice has been already taken in the course of my lectures. In a former part of them ^ I observed, that, when society was formed, it possessed jointly all the previously separate and independent powers and rights of the individuals who formed it, and all those other powers and rights which result from the social union. I observed, that all those powers and rights were collected, in order to be enjoyed and exercised ; that, in a numerous and extended society, all those powers could not, indeed, be exercised person- ally ; but that they might be exercised by representation. I asked, whether one power might not be delegated to 1 2 Hale, P. C. 31.3. ^ Ante, vol. 1, pp. 168-170. OF JUEIE.S. 231 one set of men ? and whether another power might not be delegated to another set of men ? alluding to the legisla- tive and executive departments. I mentioned a third power of society — that of administering justice under the laws. I asked, whether this power might not be partly delegated, and partly retained in personal exercise ; be- cause, in the most extended communities, an important part of the administration of justice may be discharged by the people themselves. I mentioned, that all this has been done, as I should have the pleasure of showing, when I should come to examine our governments, and to point out, by an enumeration and comparison of particulars, how beautifully, how regularly, and how usefully, we have established, by our practice in this country, principles concerning the distribution, the arrangement, the reser- vation, the direction, and the uses of that pu-blic power, of which the just theory is still unknown in other nations. I have had the pleasure of explaining the powers, legislative, executive, and judicial, which the people have delegaited : I come now to that part of the judicial author- ity, which they retain in personal exercise — 1 mean, the authority to decide in criminal cases ; in cases, especially, of life and death. This may be considered in two different points of light ; as a power, and as a burthen. As a burthen, it is con- sidered as too heavy to 1)e imposed, as a power, it is con- sidered as too great to be conferred, permanentlj^, upon any man, or any organized body of men. We have seen it a discretionary — so far it partakes of a legislative power. We have seen that, in large and extended communities, necessity directs the delegation of other legislative power. This is a species of legislative power, which may, and therefore should, be exercised in person. In cases of life and death, the standing jurisdiction remains with the people at large. As emergencies occur, an abstract of the people ■26-2 LECTaEES ON LAW. is selected for the occasional exercise of it. The moment that the occasion is over, the abstracted selection dis- appears among the general body of the citizens. No one citizen, therefore, any more than any other, can complain of this as an uneasy burden. Except on particular occa- sions, and during those occasions, it is imposed on no one. If jurisdiction in cases of life and death, considered as a burthen, is uneasy to those who bear it ; considered as a power, it is tremendous to those who behold it. A man, or a body of men, habitually clothed with a power over the lives of their fellow-citizens ! These are objects for- inidable indeed. By an operation, beautiful and sublime, of our juridical system, objects so formidable are withdrawn from before the eyes of our citizens— objects so formidable do not exist. To promote an habitual courage, and dignity, and independence of sentiment and of actions in the citi- zens, should be the aim of every wise and good government. How much are these principles promoted, by this beautiful and sublime effect of our judicial system. No particular citizen can threaten the exercise of this tremendous powei' : with the exercise of this tremendous power, no particular citizen can be threatened. Even the unfortunate prisoner the day of whose trial is come, the jury for whose trial are selected, impanelled, and returned — even this unfortunate prisoner cannot be threatened with the exercise of this tremendous power b}'- any particular citizen. When he comes to the bar and looks upon the piisoner, a single supercilious look will produce a peremptory rejec- tion. Uncommonly jealous is the constitution of the United States and that of Pennsylvania upon this subject, so in- teresting to the personal independence of the citizens. The formidable power we have mentioned is interdicted even to the legislatures themselves. Neither congress nor the general assembly of this commonwealth, can pass any act OF JUKIES. 233 ■of attainder for treason or felony .^ Now, an act of attainder is a legislative verdict. I have said, that this authority remains with the people at large. Potentially, indeed, it does ; actually, it cannot be said to remain even with them. The contrivance is so admirably exquisite concerning this tremendous jurisdic- tion, that, in the general course of things, it exists actually nowhere. But no sooner does any particular emergency ■call for its operations, than it starts into immediate ex- istence. But it remains, that I give satisfaction with regard to the inquiry — how shall this burthen, attended with so much uneasiness, be borne by those, upon whom, though only occasionally, it is laid ? It is, we acknowledge, a most weighty burthen. That man must, indeed, be callous to sensibility, who, without emotion and anxiety, can deliberate on the question — -whether, by his voice, his fellow-man and fellow-citizen shall live or die. But while capital punishments continue to be inflicted, the burthen must be borne ; and while it must be borne, every citizen, who, in the service of his country, may be called to bear it, is bound to qualify him- self for bearing it in such a manner, as will ensure peace ©f mind to himself, justice to him whose fate he may deter- mine, and honor to the judicial administration of liis .country. By so qualifying himself, though, in the dis- charge of his duty, he will feel strong emotions, he will, from the performance of it, feel no remorse. I must again enter upon a review of some principles, of which notice has already been taken. With regard to the law in criminal cases, every citizen, in a government such as ours, should endeavor to acquire a reasonable knowledge of its principles and rules, for the •direction of his conduct, when he is called to obey, when ' Cons. U. S. art. 1, s. 9. Cons. Penn. art. 9, ». 18. 234 LECTURES ON LAW. he is called to answer, and when he is called to judge. On questions of law, his deficiencies will be supplied by the- professional directions of the judges, whose duty and whose business it is professionally to direct him. For, as we have seen, verdicts, in criminal cases, generally determine the- question of law, as well as the question of fact. Questions of fact, it is his exclusive province to determine. With the consideration of evidence unconnected with the ques- tion which he is to try, his attention will not be distracted ; for everything of that nature, we presume, will be ex- cluded by the court. The collected powers of his mind, therefore, will be fixed, steadily and without interruption^ upon the issue which he is sworn to try. This issue is an issue of fact. Its trial will depend upon the evidence- Evidence, in every cause, is that which produces : evidence,, in a capital cause, is that which forces belief. Belief, as we have seen, is an act of the mind; not easily described, indeed, but easily felt. Does the juror feel its force? Let him obey the constitution of his nature, and yield to the strong conviction.^ If the evidence produce, upon the mind of each of his fellow jurors, the same strong conviction, which it produces on his, their sentiments will be unanimous ; and the unanimous sentiments of all will still corroborate the strong conviction of each. If a P The opinions of unprejudiced men, who have had a wide and varied experience in the matter in question, are entitled to great weight. The late Justice Miller would seem to fill the requirement in all par- ticulars, starting with an opinion against the utility of the jury system. After a long professional career as a lawyer and a judge, his ohservatiort and experience compel him to change his view. His sentiments are^ given by Judge Dillon in his Lectures upon Law and Jurisprudence, p. 122. The most cogent fact stated is the difficulty experienced by the- nine judges of the United States Supreme Court in agreeing upon ques- lions of fact, compared with the ease with which they agree upon ques- tions of law. He expresses himself very freely that the education of thp lawyer and judge does not peculiarly fit men to pass upon questions of" fact.] OP JTJEIES. 235 single doubt remain in the mind of any juror, that doubt should produce his dissent ; and the dissent of a single juror, according to the principles which we have ex- plained, and, we trust, established, will produce a verdict of acquittal by all. Considered in this manner, is the duty of a juror, in a capital case, intolerably burthensome? It cannot, indeed, as we have said, be discharged without emotion : but the unbiassed dictates of his own constitution will teach — will force him to discharge it properly; In criminal — in capital cases, with what sublime majesty does the trial by jury now appear to its ravished beholders I In the first and purest principles of society its founda- tions are laid : by the most exquisite skill, united witli consummate benignity, the grand and finely proportioned edifice has been raised : within its walls, strong and lofty as well as finely proportioned, freedom enjoys protection, and innocence rests secure. CHAPTER VII. THE SUBJECT CONTINUED. OF SHEKIFFS AND CORONERS. The sheriff is an officer of high respectability in our juridical system, and was known to the most eaily ages of the common law. Among the Saxons, his power was very great and ex- tensive — judicial as well as ministerial. In his minis- terial character, he , executed the writs of the king and the judgments of his courts ; in his judicial character, : the sheriff presided in the several courts of justice com- prehended within the sphere of his jurisdiction. He was chosen in the county court by the votes of the freeholders ; and, like the king himself, says Selden, was entitled to his honor by the people's favor. All the other nations of Gothic and German origin, who, on the ruins of the Roman empire, founded king- doms in the different parts of Europe, had officers of the same kind with the sheriffs of the Anglo-Saxons. This is a strong evidence of their high antiquity, as well as general respectability. In some of the Gothic constitu- tions, the sheriffs were elected by the people, but con- firmed by the king. The election and appointment were made in this manner : the people chose twelve electors ; those electors nominated three persons to the king ; from those three the king selected one, who was the confirmed sheriff. 236 OF SHERIFFS AND COKONEKS. 237 The popular elections of the sheriffs, in England, were lost by the people in the reigns of Edward the Second and Edward the Third ; and a new mode of appointment was substituted in their place. In the time of Lord Chan- cellor Fortescue, the manner of the election of sheriffs was as follows. Every year there met, in the court of exchequer, all the king's counsellors, as well lords spir- itual and temporal, as all other the king's justices, all the barons of the exchequer, the master of the rolls, and cer- tain other officers. All these, by common consent, nomi- nated of every county three persons of distinction, such as they deemed best qualified for the office of sheriff, and presented them to the king. Of the persons so nominated and returned, the king made choice of one, who, by virtue of the king's letters patent, was constituted high sheriff of that county, for which he was so chosen. This mode of nomination and appointment still continues in Eng- land. It has been usual to appoint them annuallj-. But in the reign of Henry the Fifth, we find from this custom a parliamentary exception, rendered very remarkable by the jeason assigned for it. The king is permitted to appoint sheriffs for four years ; " because by wars and pestilence there are not a sufficient number remaining, in the dif- ferent counties, to discharge this office from year to year." i By a parliamentary regulation made in the reign of Edward the Second, and repeated in that of Edward the Third, it was directed that sheriffs should be chosen from such persons as had lands in their shires ; and that those lands should be sufficient to answer to the king and his people, if grieved.^ By a law of the United States, a marshal is appointed 1 Bar. on St. 386. " Eeev. 78. 238 LECTUKES OX LAW. for each district for tlie term of four years ; but is remov- able from his office at pleasure.^ As no particular mode is specified by the law for appointing the marshal, his appointment falls, of course, under the general provision made by the national constitution.^ The president nomi- nates, and, with the advice and consent of the senate, appoints him. His powers and his duties are, in general, coincident with those of a sheriff.^ By the constitution of Pennsylvania,* sheriffs are chosen by the citizens of each county : two pei^sons are chosen for the office ; one of the two is appointed by the governor. We observe, here, another instance of the old Saxon and German customs revived in the constitution of this com- monwealth. Our sheriffs are elected and hold their offices for three years, if they behave themselves well ; but no person shall be twice chosen or appointed sheriff in any term of six years. The converse of this regulation we find in an act of parliament — No man, who has served the office of sher- iff for one year, can be compelled to serve it again within three years afterwards.^ The reason of this converse reg- -ulation may be collected from another act of parliament. The expense which custom had introduced in serving the office of high sheriff became so burthensome, that it was enacted, that no sheriff should keep any table at the assizes, except for his own family, or give any presents to the judges or their servants, or have more than forty men in livery : yet, for the sake of safety and decency, he may 1 Laws U. S. 1 con. 1 sess. c. 20, s. 27. ^ A,.t_ o, s. 2. ' " The marshals of the several districts, and their deputies, shall hav& the same powers in executing the laws of the United States, as sheriffs and their deputies, in the several states, have by law, in executing the laws of the respective states." Laws U. S. 3 con, 2 sess. c. 101, s. fi. The same provision was contained in a prior law, repealed by that above cited. Laws U. S. 2 con. 1 sess. c. 28, s. 9. Ed. « Art. 6. s. 1. 6 St. 1 R. 2 c. 11. 1 Bl. Com. 043. OF SHERIFFS AND COKONEKS. 239 not Lave less than twenty men in England and twelve in Wales.i An attention to the powers and duties of the sheriff will disclose, I think, a peculiar propriety in the compound mode of election and appointment, directed by our con- stitution. He executes the process of courts, and, in his ■county, is the principal conservator of the peace : so far he is an executive officer, and should be appointed by the governoi'. He returns jurors : for this reason, he should be chosen by the people. Invested with the double char- acter, he should receive his authority partly from both. As he is elected and appointed for three years, and can serve only once in the period of six years ; he is, in a con- siderable degree, independent, and may, therefore, be pre- sumed impartial in the exercise of his very important duties and powers. Those duties and powers w^ are now concisely to describe. The judicial power of the sheriff, which, in former times, was very great and extensive, is by our juridical system, transferred, with great propriety, to other establishments ; for it is obviously incongruous, that executive and judicial authority should be united in the same person.^ Permit me here to observe, that the accumulation of unnecessary and even inconsistent powers seems to be the principal objection against the old Saxon institutions. In most other respects, they are not more venerable on account •of their antiquity, than on account of their matured excel- lence. Permit me also here to observe, that, in the correct distribution of the powers of government, the constitution of Pennsylvania approaches, if it does not reach, theoretic perfection. 1 St. 13 and 14 C. 2, c. 21 ; 1 Bl. Com. 346. P This is really th§ great point of change in the character of the office of the sheriff. He is still the most important peace officer of the county, and in his ministerial function has lost nothing.] 240 LECTURES ON LAW. The ministerial power of the sheriff is of great impor- tance to the impartial administration of justice, and to the internal peace and tranquillity of the commonwealth. He is the chief officer, says my Lord Coke, within the shire. To his custody the county is committed. This custody is threefold. 1. Of the life of justice ; for no suit begins, and no process is served, but by the sheriff. It belongs to him also to return indifferent juries, for the trials of men's properties, liberties, and lives. 2. Of the life of the law ; for, after suits long and chargeable, he makes execution^ which is the life and fruit of the law. 3. Of the life of the republic ; for, within the county, he is the principal conservator of the peace, which is the life of the common- wealth .^ , "With regard to process issuing from the courts of justice, the sheriff's power and duty is, to execute it, not to dis- pute its validity ; though the writ be illegal, the sheriff is protected and indemnified in serving it.^ From this gen- eral rule, however, one exception must be taken and allowed. He must judge, at his peril, whether the court, from which the process issued, has or has not jurisdiction of the cause.^ The selection and the return of jurors is a most moment- ous part of the power and duty of a sheriff. It is that part, in which abuses are most fatal : it is that part, in which there is the greatest opportunity and temptation to commit them. Let us speak of former times. In the reign of Edward the First, the parliament was obliged to interpose its authority to give relief to the people against sheriffs, who harassed jurors unnecessarily, by summoning them from a great distance, and who returned such as would not give an impartial verdict. This last abuse, says a modern writer * on the English law, was never perfectly 1 1 Ins. 168 a. 2 6 Rep. 54. 9 Rep. 68. 3 10 Rep. 76. 2 Wil. 384. * Bar. on St. 185. OP SHERIFFS AND COBONEES. 241 removed till the late act was made for balloting juries. In an account of Cornwall, written by Mr. Carew, we are in- formed, that, in the reign of Henry the Seventh, an article of charge for the " friendship of the sheriff," was common in an attorney's bill.' As the principal conservator of the peace in his county, and as the calm but irresistible minister of the law, the authority of a sheriff is important ; his duty is proportion- ably great. To preserve or restore the public tranquillity, to ensure or enforce the effectual execution of the law, he is invested with the high power of ordering to his assist- ance the whole strength of the county over which he presides. The law is mild in its mandates ; but it will be obeyed.- It knows, it presumes, it will suffer none of its minister* to know or to presume, any power superior to its own. If any man, says my Lord Coke, however great, might resist the sheriff in executing the king's writs ; it would be regular and justifiable in the sheriff to return such resist- ance: but such a return would redound greatly to the dishonor of the king and his crown : what redounds to the dishonor of the king and Ms crown, is against the com- mon law : and, therefore, if necessity require it for the due execution of the king's writs, the sheriff may, by the common law, take the posse comitatus to suppress suclt unlawful force and resistance.^ When necessity requires it, the sheriff not only may, but must at his peril, employ the strength of his county. In the reign of Edward the Second, a sheriff had the king's writ to deliver possession of land : the sheriff returned that he could not execute the writ by reason of resistance. This was considered as an insult upon the authority, with which he was invested; and because he ' Bar. on St. 458. ^ 2 Ins. 193. 242 LECTURES ON LAW. took not the power of the county in aid of the execution, he was amerced at twenty marks.^ Besides the warrant of the common law, continued my Lord Coke, the sheriff has his letters patent of assist- ance, by which the king commands, that all archbishops, bishops, dukes, earls, barons, knights, freemen, and all others of the county shall attend, assist, and answer to the sheriff, in everything which belongs to his office. No man above fifteen and urtder seventy years of age, ecclesiastical or temporal, is exempted from this service : for so it is by construction of law. How easily are these cases applied to the United States and to Pennsylvania, under the operation of the fine rule, tliat the empire of the law is stronger as well as safer than the empire of man ! I proceed to consider the office of coroner. This office, though much neglected, though, perhaps, despised, is an office, both ancient and dignified. It forms no inconsider- able part of a complete juridical system. In the time of the Saxons, as we are infor^med by Mr. Selden, he was one of the two chief governors of the county. He was made by election of the freeholders in their county court, as the sheriff was, and from among the men of the chiefest rank in the county.^ By the constitution ^ of this commonwealth, sheriffs and coroners are chosen and appointed in the same man- ner. We see here another revival of the Saxon and Ger- man institutions. To the office of sheriff, that of coroner is, in many instances, a necessary substitute : for if the sheriff' is in- terested in a suit, or if he is of affinity with one of the parties to a suit, the coroner must execute and return the process of the courts of justice.* But the most important duty and business of a coroner 1 2 Ins. 194. 2 Bac. on Gov. 41. s Art. 6, s. 1. '4 Ins. 271. OF SHERIFFS AND CORONEKS. 243 is of another nature. When any person is killed, or dies suddenly, or dies in prison, the coroner must hold an inquest concerning the manner of his death. This in- quest must be held upon the view of the body ; for if the body cannot be found, the coroner cannot sit. He must certify his inquisition to the court of king's bench or to the next assizes.^ Tlie lord chief justice of the king's bench is the supreme coroner of all England, and may exercise that jurisdiction in any part of the kingdom.^ From the statute of Wales, made in the twelfth year of Edward tlie First, and which, by the remedies provided for Wales, informs us, at the same time, what was the law and practice of England — from this statute we learn, that the coroner was directed to attend and summon a jury, when a man was wounded so dangerously, that his life was despaired. This branch of a coroner's duty is now totally neglected. " It is a regulation, however," says the learned observer upon the ancient statutes, " which deserves much to be I'evived : and I should con- ceive that this attendance of the coroner with a jury, when a dangerous wound had been received, was to pre- vent the dying words of the person murdered from being evidence ; as this kind of proof, though allowed at pres- ent, cannot be too cautiously admitted. It is presumed, indeed, that the words of a person expiring cannot but be true, considering the situation, under which he gives the information. But may not a dying man, though a good Christian, deprived of expected happiness in life by a wound, received, perhaps, from an enemy, rather wish his punishment more eagerly than he should do ? And may not those about the djdng person, who are generally relations, repeat what he said more strongly on the trial, tlian possibly the words were delivered ? " ^ ' 1 El. Com. 349. " 4 Rep. 57 b. ^ uar. on St. 124. 16 CHAPTER VIII. THE SUBJECT CONTINUED. OF COUNSELLORS AND ATTORNEYS. In our courts of justice there are counsellors and attor- neys. In England, there are two degrees of counsellore — Serjeants and barristers. How ancient and honorable the state and degree of a serjeant is, has been the ample theme of many learned and elaborate treatises. My Lord Coke, in a speech which he made upon a call of serejants, compares the Serjeants' coif — a cap of a par- ticular form — to Minerva's helmet ; for Minerva was the goddess of counsel. He also discovers, that the four cor- ners of that cap indicate four excellent qualities — science, experience, observation, recordation.^ Pace tanti viri, shall the truth be disclosed ? If the origin of coifs is investigated, we shall, perhaps, find that Meicury, and not Minerva, is entitled to the merit of the invention. At one period, the clergy were almost the only lawyers known in England ; but, in a fit of resent- ment, they were banished from the bar. Its sweets — ^for its profits were sweet — could not be easily relinquished. The clerk still pleaded, but disguised in the Serjeant's robe, and, by contriving the coif, concealed his clerical tonsure. But, like many other things, its first origin was lost in 1 Bar. on St. 453. 244 OF COUNSELLORS AND ATTOKNEYS. 245 its subsequent splendor. The institution became honor- able and venerable ; and, as such, is still considered and preserved in England. " A serjeant at law," says my Lord Chancellor Fortescue,i " shall not take off his coif, though he be in the royal presence, and talking with his majesty. No one can be made a judge of the courts of king's bench or common pleas, until he is called to the state and dignity of a serjeant." To America, however, it has not been transplanted. We leave it to continue and flourish in its native soil. In the first ages of Athens, the parties pleaded for themselves ; but, in later times, they were allowed to have the benefit of counsel.'^ That the length of their speeches might not exhaust the patience of the judges, or prevent other business equally necessary, it was usual — perhaps the spirit of the custom might be revived with no dis- advantage — to measure their allotted portion of time by an hour-glass, in which they used water instead of sand So scrupulously exact were they in this particular, that an officer, whose name denoted his office — EipuSwo — was ap- pointed to distribute the water equally to each side. While strict justice was required from the advocates, strict justice was done them : the glass was stopped while the proper officer recited the laws which they quoted. Nay, the water remaining at the conclusion of an argument might be transferred to the use of another speaker. Hence this expression — Let such a one speak till my water be run out.^ This custom was practised by the Romans. The time allowed, by the law, for the speeches of the advocates is termed, by Cicero, "legitimse horse." The patient and indulgent Antoninus, who was a philosopher as well as an emperoi', ordered, as we are told by his historian, plenty 1 De Laud. c. 50. « 1 Pot. Ant. 106. 3 Pet. on Jur. 59, 63 ; 1 Pot. Ant, 118. 246 LECTURES ON LAW. of water for the speakers at the bar ; in other words, he allowed them full time for their speeches. "Quoties judico," says the younger Pliny, " quantum quis plurimum postulat aquae do " — when I sit in judgment, I give to every advocate as much water as he desires.^ This instance of resemblance between the Athenian and Roman bars is not mentioned on account of its intrinsic importance, but because it proves, more strongly than an important instance could prove, the principle of imitation. The coincident practice could be dictated by no common principle of nature or of society. Counsellors, or barristers at law, have been long known in England. Formerly they were styled " apprenticii ad legem," apprentices to the law ; because they were con- sidered only as learners, and were not permitted to exer- cise the full office of an advocate, till they were qualified by the knowledge and experience acquired during the long probationship of sixteen years.^ Edward the First, it is said, introduced the practice of permitting them to plead in the court of king's bench, before they attained the rank and dignity of Serjeants.* Attorney, says my Lord Coke, is an ancient English word, and signifies one who is set in the turn, stead, or place of another. Of these, some are private ; and some are public, as attorneys at law.* The business of an at- torney at law is to manage the practical part of a suit, and to follow the advice of the Serjeants or barristers, who are of counsel in it.* At the common law, no person could appear by an at- torney, without the king's writ or letters patent.^ In one part of his works, my Lord Coke admires the policy of this regulation. Its genius was to prevent the increase 1 Pli. Ep. 1. 6, ep. 2 ; Pet. on Jur. 134. 2 Fort, de Laud. c. 50. ' 1 Eeev. 491. * 1 Ins. 51 b. 6 2 Ins. 564 ; Wood, Ins. 466. » Wood, Ins. 4G6. OF COUNSELLOBS AND ATTORNEYS. 247 and multiplication of suits. But when statutes permitted the parties to appear by attorney, it is not credible, says he, how suits at law increased and multiplied. Such ill success has ever had the breach of the maxims and the ancient rules of the common law.^ In another part of his works, he expresses sentiments more favorable to the ap- pointment of attorneys. The act commanding the judges to admit them, he stj'les "an act of grace," because the king gave his royal assent to a law for the quiet and safety of his subjects, giving them power to make attor- neys, whereby he lost such profit of the great seal, as he formerly received in such cases.^ To correct the abuses, which arose from the admission of attorneys, whose heads and whose hearts were equally unqualified for the trust, it was enacted, so early as the reign of Henry the Fourth,^ that all the attorneys shall be examined by the judges ; and such as are good and vir- tuous and of good fame shall, by the discretion of the court, be received and sworn well and faithfully to serve in their offices ; and their names shall be entered on the roll. A barrister is not sworn.* According to the law of the United States, parties may plead and manage their own causes personally, or by the assistance of such counsel or attorneys at law, as, by the rules of the several courts, shall be permitted to manage and conduct causes.^ By a rule of the supreme court, it is ordered, that it shall be requisite to the admission of attorneys and coun- sellors to practise in that court, that they shall have been such for three years in the supreme court of the state to which they respectively belong, and that their private and professional character shall appear to be fair. In the cir- i 2 Ins. 249. « 2 Ins. 378. = St. 4, H. 4, c. 18. < 2 Ins. 214. 6 Laws V-. S. 1 cong. 1 sess. c. 20, s. 35. 248 LECTTTRES ON LAW. 'cuit court for the Pennsylvania district, the same rule is made with the only difference of " two " instead of " three " years. ^ By a law of Pennsylvania ^ it is provided, that a com- petent number of persons, learned in the law, and of an honest disposition, may be admitted by the justices of the several courts to practise as attorneys in them. No attorney shall be admitted, without taking an oath or affirmation — that he will behave himself in the office of attorney within the court, according to the best of his learning and ability, and with all good fidelity, as well to the court as to the client ; that he will use no falsehood, nor delay any person's cause for lucre or malice. ^ Attorneys at law, on one hand, enjoy privileges on ac- count of their attendance in courts : on the other, they are peculiarly subject to the censure and animadversion of the judges.* In all the courts of Pennsylvania, and in all those of the United States, except the supreme court, the same person may act both as counsel and as attorney. In the supreme court, the different offices must be exercised by different persons. The law has not, in every age, nor in every country, been formed into a separate profession. Doubts have been entertained, whether, in any country, or in any age, it should be so formed. Every man, it has been often said, ought to be his own lawyer. 1 At April sessions, 1804, the above-mentioned rule of the circuit court was rescinded, and the following established : "Obdered, that no per- son shall be admitted to practise as counsel or attorney of this court, unless he shall have previously studied three years, been admitted two years in a court of common pleas, and in tlie supreme court of a state : or unless he shall have studied four years, been admitted one year in a court of common pleas, and in the supreme court of a state : or unless he shall have studied five years and been admitted in the supreme court of a state. Satisfaction also of moral character will be required." Ed. 2 1 Laws Penn. 185, s. 28. » Id. 360, s. 38. « 3 Bl. Com. 26. OF CO0KSELLO11S AND ATTORNEYS. 249 In a system of lectures, addressed peculiarly, though by no means exclusively, to those who are designed for the profession of the law, this question deserves o,ur particular notice. It deserves our notice more especially as we are told, in a very late and a very sensible performance con- cerning the revolution in France, that those, who have been most active in this mighty event, mean to destroy the separate profession of the law. An event, so auspi- cious to man, will diffuse a winning appearance over everything, with which it seems to be, in the slightest manner, connected. But it is our business to examine the foundations, and not merely the external appeaiances of things. It may be asked — when you have taken so much pains, in the introduction .to these lectures, and in many parts of them, to persuade us, that the knowledge of the law should, especially among a free people, be disseminated univer- sally ; will you now turn suddenly in an opposite direc- tion, and endeavor to persuade us, that a distinct and sepa- rate profession should be formed of the law ? The result, perhaps, of investigating this subject will be, that unless the law is made the peculiar study and .profession of some, it will never become the object of knowledge to all. We have heard the complaint of my Lord Coke, that the admission of attorneys at law into the courts of justice is an innovation upon the practice and the policy of the common law. It must be confessed that this is the _case. At the common law, both the plaintiff and the defendant appeared in their proper persons. " The plaintiff offers himself," and " the defendant comes " are the immemorial and authentic forms of entry — " Querens obtulit se " — " Defendens venit." These, on both sides, denote a per- sonal appearance. In the early and simple periods of society, the personal appearance of the parties was all that was necessar3'. 250 LECTURES ON LAW. Such were the periods of which we speak. Among the ancient Saxons, few and plain were the forms and circum- stances, under which property was litigated and decided in their courts of justice ; uniform and short were the pro- ceedings in those courts. Among the ancient Saxons, therefore, professional characters were not necessary for the management or the determination of suits. The king, or the earl, as the case might be, was qualified to judge ; and the parties to plead. An adherence to principle often dictates a variation in practice. In the progress of society, the business of society became more complex and intricate; and the controversies arising from it became more frequent and embarrassed. This new order of things introduced a new order of pro- fessions. To the king were substituted the judges : to the earls, the sheriffs ; and to the parties, attorneys or counsel learned in the law. " After the Anglo-Saxon laws were committed to writing," says Dr. Henry in his history of Britain, " it became necessary that some persons should read and study them with particular attention, in order to understand their true intent and meaning. This gave rise to lawyers by profession, who, in the language of England in those times, were called rcedhoran or lahmen, and, in Latin, rhetores or causidiei. Some of these law men, after having undergone an examination as to their knowl- edge of the law, were appointed assessors to the aldermen and hundredaries : others of them acted as advocates and pleaders at the bar." ^ But it will be replied — and still on the authority of my Lord Coke — that the introduction of lawyers multiplies suits at law. The unnecessary " multiplication of law- yers," rather say : for that is the amount of my Lord Coke's complaint : and, even in the ground of hi§ complaint, he appears not altogether steady or consistent. But else- 1 2 Hen. 245. OF COUNSELLORS AND ATTOIINEYS. 251 where, my Lord Coke traces the multiplication of law- suits to causes very different from the establishment of the law as a profession. Their two general causes, says he, are peace and plenty. Peace is the mother of plenty ; and plenty the nurse of suits.^ Instead of wishing the re- moval of those general causes he prays for their continu- ance. In a country governed by the common law, the separate profession of lawyers ought to be established for a peculiar reason. The common law is the law of experience. Far is it, indeed, from being without its general principles ; but these general principles are formed strictly upon the plan of the regulce philosophandi, which, in another science. Sir Isaac Newton prescribed and observed with such glorious success — they are formed from the coincidence, or the analogy, or the opposition of numberless experi- ments, the accurate history of which is contained in records and reports of judicial determinations. To pe- ruse those reports — to consult those records, requires much time and industry. To methodize them under the proper heads, requires much attention and patient sagacity. From a varietj' of particular cases to draw conclusions, neither too wide nor too narrow, requires a judgment habitually exercised, as well as naturally strong. These are the requisites, by which the common lawyer must be formed. From these requisites we may easily infer the propriety of establishing the law as a separate profession. To acquire these requisites is a sufficient employment. In the common law, principles are collected slowly and with difficulty; but, when once collected, they may be communicated soon and easily. The principles may be known, and may be reduced to practice too, by men who never heard or witnessed one of the legal experiments, 1 4 Ins. 76, 252 LECTURES OX LAW. from the lengthened series of which those principles are drawn. In this manner I reconcile my positions — that the knowl- edge of the law should be disseminated universally — and — that the law should be formed into a separate profession. In this manner, too, I prove — that unless the law is made the peculiar study and profession of some, it will never become the object of knowledge to all. Should the profession of the law be merely honorary ? Or should it be a source of profit as well as of fame ? These questions have undergone ample discussion ; and have, at different times, received contrary authoritative resolutions. In a government truly republican, the sub- ject will not admit of dispute. By the Cincian law, every gratification whatever was interdicted to the Roman advocates. What was the con- sequence ? Between citizen and citizen au inequality in- consistent with the government of a free countrj'. Those who had and those who might have causes depending, and were unqualified for pleading them — rthis is the de- scription of the many — were kept in a state of vassalage to those, by whom they might be pleaded without a fee — this is the description of the few. Hence the well-known relation of client and patron: hence the tyranny and servility, to which that well-known relation gave rise. Besides, this regulation was as liable to be eluded as it was certain to be abused. Presents, said to be voluntary, might easily supply the place of stipulated fees. We are told of a lawyer, who practised this art with great address and advantage. A piece of plate, which a client had thrown at his feet, was placed conspicuous in his office,' with this inscription;—" lucri neglecti lucrum." What can be more honorable than that gain, which is acquired by virtue and talents? In a state of republican 1 Bar. on St. 415. OF COUNSELLORS AND ATTORNEYS. 253 equality, what can be more reasonable, than that one citizen should receive a compensation for the services, which he performs to another ? still more so, for those which he performs to the state ? It may be expected, that I should here say something concerning the studies Avhich a lawyer should pursue, the accomplishments whicli he should acquire, and the char- acter which he should support. Something concerning each of these topics I mean to say, but with a diffidence proportioned to the delicacy of the subject. I think I may venture the position — that in no science can richer materials be found, and that, in no science, have rich materials been more neglected or abused, than in the science of law — particularly of the common law. Listen to the sentiments of my Lord Bacon, in his book on tjie advancement of learning. It is well known, that the vast object of this exalted and most comprehensive genius was, to erect a new and lasting fabric of philosophy, founded, not on hypothesis or conjecture, but on experi- ence and truth. To the accomplishment of this design, it was necessary that he should previously review, in all its provinces and divisions, the state of learning as it then stood. To do this effectually required knowledge and discernment, exquisite and universal : such were happily employed in the arduous task. Whatever, in science, is erroneous or defective, he has pointed out. He has done more ; he has suggested the proper means of correcting errors and supplying defects. Of the science of law, he thus speaks — Those, who have written concerning laws, have treated the subject like speculative philosophers, or like mere practising lawyers. The philosophers propose many things, which, in appearance, are beautiful, but,- in fact, are without utility. They make imaginary laws for imaginary commonweaths ; and their discourses are as the stars, which give little light, because they are so high. 254: LECTURES ON LAW. The lawyers, on the other hand, attached implicitly to the institutions of their country, or to the tenets of their sect, exert not their judgment unbiassed, but harangue as if they were in chains. But certainly, continues he, the knowledge of this sub- ject properly belongs ad viros civiles. Those viri civilea — " practical statesmen " is, perhaps, the nearest transla- tion, of which our language will admit — he describes in the following manner. They know what appertains to human society, what, to the public welfare, what, to natural equity what, to the manners of nations, what, to the different forms of commonwealths. These are qualified to judge concerning laws, by the principles and rules of genuine policy and natural justice. For there are certain fountains of justice, from which all civil laws should flow like streams. To those fountains of justice and public utility let us have recourse.^ He then goes on, according to his plan, to give a specimen of a treatise concerning universal justice, or the fountains of law. I have said that the law, particularly the common law, abounds in rich materials. For the truth of this observar tion, can I appeal to stronger evidence than to a series — con- tinued, almost without interruption, for five hundred years — of cases which actually happened, and were judicially determined? Many of these cases are related in the most accurate and masterly manner ; witness the reports of my Lord Coke, of Mr. Peere Williams, and of Sir James Burrow : others, too, deserve to be mentioned. These are the precious materials of the common law. These ai:e authentic experiments, on which a sound system of legal philosophy must be formed. On these experiments, the most indefatigable industry has been frequently employed. But has it been employed in a proper manner? Upon cases, cases liave been accumulated ; to collections, coUec- 1 1 Ld, Bac. 248. 2 Ld. Bac. 537, OP COUNSELLORS AND ATTORNEYS. 255 tions have been superadded : but they have been directed, generally, by no order more eligible than that of the alpha- bet. To one who is already a lawyer, abridgments may, on particular occasions, be of use : but surely they are not calculated to inspire or to guide the liberal and enlight- ened study of the law. The Institutes of my Lord Coke are a cabinet richly stored with the jewels of the law : but are not tliose jewels strewed about in endless and bewildering confusion ? In expression, as well as in arrangement, the composi- tions of the law have been glaringly imperfect ; and have had an injurious tendency to deter those, whose attach- ment they should have been fitted to attract. Hear the natural and pathetic description which the celebrated Sir Heniy Spelman gives of his situation and feelings, when he commenced his study of the common law : " My mother sent me to London to learn the law : when I entered on its threshold, and encountered a foreign language, a bar- barous dialect, an inelegant arrangement, and a collection of matter, not only immense, but disposed in such a manner as to be a perpetual load upon the memory ; my spirits, I own it, failed within me.''^ Since his time, indeed, very considerable assistance has been furnished to young gentlemen, engaged in the ac- quirement of legal knowledge. Of this assistance, tlie short but very excellent analysis digested by my Lord Chief Justice Hale forms a most valuable part ; whether we consider it in itself, or as the foundation of what has been erected upon it. The distribution of this scientifical performance has, as we are informed by Sir William Blackstone, been principally followed in his celebrated Commentaries on the laws of England. It is but justice to add, that, in those Commentaries, the method of Hale's analysis is approved as well as regarded. I have formerly 1 1 Bl. Com. 31 n. 256 I.ECTUKBS ON LAW. observed, that, in point of expression, the Commentaries are elegant and pure. But something more is wanting still. Excellent mate- rials, a correct arrangement of those materials, and a proper expression of the arranged form are all necessary ; but they are not all that is necessary to a sound system of the law. For a system founded on principles truly political and philosophical, we still look around us in vain.^ On such principles alone, can a system solid and permanent be erected. To confirm my sentiments, let me again resort to the high authority, before whose splendor tlie whole host of sciolists hide their diminished heads. " The reasons of municipal laws," says my Lord Bacon, " severed from the grounds of nature, manners, and policy, are like wall- flowers, which, though they grow high upon the crest of states, yet they have no deep root." ^ Let me again repeat it — that we have no such system of the common law as I have described, is by no means owing to the want of the materials proper for the erection of so noble a fabric. " I do not a little admire the wisdom of the laws of England," says my Lord Bacon in another place,^ " and the consent, which they have with the wisdom of philosophy and\iatui-e itself." By this time, you are at no loss to discover my senti- ments concerning the studies which a lawyer ought to pur- sue, and the accomplishments which he ought to acquire. [1 We are informed by the introduction of the original edition that Judge Wilson was engaged upon the formation of such a system, but I have been able to find nothing in relation to the principles of classifica- tion to be followed, except his treatment in the lectures of the law as it relates to persons and as it relates to things ; but this is but an applica- tion of old principles — a copying of old methods — and not a disclosure of the principles upon which the method depends. We have yet to see the publication of an institutional work upon American law, with an arrange- ment depending upon the principle of legal classification followed by Gains, Hale, and Blackstone.] 2 4 Ld. Bac. 101. » Id. 103. OF COUNSELLORS AND ATTORNEYS. 257 He ought to know men and societies of men, in every state and in every relation in which they can be placed, in every state and in every relation in which men or soci- eties of men can be placed, he ought to know what appertains to justice — to comprehensive morality. From the fountains of justice, we have seen, the civil laws should spring. To that fountain, ever full and ever flowing, let the stu- dent of the law intrepidly ascend : he will then, with ease, with pleasure, and with certainty, follow the meandering courses of its numerous streams. It is an opinion, far from being uncommon, that the only institution necessary for a practising lawyer is, to ob- serve the practice in a lawyer's office. No opinion was ever more unfounded : no opinion, perhaps, ever entailed more mischief upon those, who have been its unfortunate victims. I certainly shall not be misunderstood as if I meant to speak with contempt of the practice, which is to be observed in a lawyer's office. Nothing can be more re- mote from my intention and from my sentiments. To the most accomplished lawyer, even the minutioe of practice are objects of regard ; and, in his hands, they can be em- ployed to useful, nay, to splendid purposes. In nature, the greatest bodies, the greatest systems of bodies, are composed of the smallest particles ; and the microscope, as well as the telescope, discloses a world of wonders to our view. So in the sciences — so, particularly, in the science of law. But to be confined to microscopic observations is the doom of an insect, not the birthright of a man. I have said that the opinion just mentioned entails much mischief upon its unfortunate victims. I have said the truth. Law, studied and practised as a science founded in principle, is among the most delightful of occupations : followed as a trade depending merely upon precedent, it becomes and continues a drudgery, severe and insupport- able. One, who follows it in this manner, lives in a state 258 LECTTJEES OK LAW. of continual distrust and alarm. To such a one, every- thing new is something odious : for he has been taught to approve of things, not because they are proper or right, but because he has seen them before. To such a one, the least deviation from even the most unessential form, appears equally fatal with the greatest departure from the most important principles : for they agree in the only circum- stance, by which he can distinguish either : tliey are not within the sphere of his practice. Tied to the centre of precedent, he treads, for life, the same dull, and small, and uniform circle around it, without daring to view or to enjoy a single object on either side. How very different is the situation of him, who ranges, not without rule, but without restraint, in the rich, the variegated, and the spacious fields of science ! To his observation and research everything is open: he is ac- customed to examine and to compare the appearances and the realities of things : to contemplate their beauty, to in- vestigate their utility, and to admire the wonderful har- mony, with which beauty and utility coincide. To him an object is not dangerous because it is new : he measures it by the correct standard of his principles : he discovers what purposes it is fitted to answer, and what other pur- poses it is fitted to destroy : he learns when to use it, and when to lay the use of it aside. The discovery of one im- provement leads him to the discovery of another: the discovery of that other leads him, in delightful progression, to another still. I am now to make some remarks concerning the char- acter which a lawyer ought to support. Laws and law-suits seem, in the apprehension of some, to be synonymous or nearly synonymous terms. In the opinion of such, the business and the character of a lawyer will be, to produce and to manage controversies at law. Part of the opinion may be admitted to be just. To man- OF COUNSELLOES AND ATTOKNEYS. 259 age controversies at law, when they have been produced by another cause, is part of the business of a lawyer : to produce them is no pari of it. Even to manage law-suits, though a part, Ls not the principal part, of a lawyer's busi- ness : the principal part of his business is to prevent them. The professional pride of a lawyer is, that no con- troversjr arises from any opinion which he gives, nor from the construction of any instrument which he draws. Like a skilful pilot, he has studied correctly the chart of the law : lie has marked the places which are dangerous, as well as those which are safe. Like a pilot, honest and benevolent as well as skilful, he cautiously avoids every danger, and through the channels of security steers the fortunes of those, who intrust them to his care. One reason, why the association between lawyers and law-suits is so strong in the minds of some people, may be this, that they never think of the former, till they are plunged in the latter, or in the necessary causes of the latter. But even in this situation, the association is not a correct one; for when they are in this situation, the tardy recourse to a lawyer is to help them out of it. To give honest and sound advice in questions of law, to those who ask it in matters relating to their business or -conduct, forms the character, which a lawyer ought to support. I speak now of his private character : his pub- lic character and conduct come under a different con- sideration. A general prejudice against the professional character of the bar has arisen, I believe, from observing, that the gen- tlemen of the profession appear equally ready to undertake ■either side of the same cause. Both sides, it is said, and said with truth, cannot be right : and to undertake either with equal alacrity evinces, it is thought, an insensibility — presumed professional — to the natural and important dis- tinction between right and wrong. 260 LECTDBES ON LAW. This subject deserves to be placed in its true light- That this insensibility is sometimes found at the bar can- not be denied. That it is often imputed when it is not found, ought also to be admitted. A few observations will easily disclose the origin of this prejudice : and its origin ought to be disclosed ; for I deem it of public im- portance, especially in a free country, that the professional character of the bar should stand in a respectable point of view. Let it be observed, that by far the greatest number of law-suits originate from disputed facts. Of these a law- yer cannot judge, but fi-om the representation of them, which he receives from his client. A dishonest client will impose upon his counsel : an honest client, from the blind- ness and partiality of self-interest, is often imposed upon liimself : the imposition, in this case, operates upon the counsel equally as in the other. In both cases, the law- yer, instead of deserving censure, deserves sympathy ; for it is alwaj's disagreeable to be engaged in a bad and un- successful cause. Again; even when law-suits originate from disputed points of law, they frequently spring from positive insti- tutions, particularly from intricate and artificial regula- tions concerning property. To such questions, the nat- ural distinction between right and wrong is susceptible of no other application, than that they be decided according to the law of the land. But further ; in such cases, the rule of positive law may be really doubtful ; and this doubt may be the true cause of the controversy. How often do we see juries and judges divided, nay equally divided, in opinion ? If this is so, a difference of sentiment in two gentlemen of the bar should not be viewed as either pretended or reprehensible. The court frequently direct arguments of counsel on each. OF COUNSELLORS AND ATTOENBYS. 261 •ide ; can it be improper for the counsel to obey those directions ? These remarks explain and justify the conduct of coun- sel in the cases which I have described, and are fitted to remove the prejudice, which, in such cases, is entertained against them. If a lawyer is so lost to a sense of his duty and character, as to advocate a cause which he knows to be morally and certainly unjust, his conduct requires not to be explained ; and I mean not to justify it. To the court, as well as to his client, a duty is owing by a gentleman of the bar : these obligations are, by no means, incompatible : both will be discharged by uniform candor, and by a decent firmness properly blended with a dignified respect. Thus much concerning counsel and attorneys at law. I have been full and particular upon this head, because it personally and immediately concerns the future conduct »nd prospects of many of my hearers. CHAPTER IX. THE SUBJECT CONTINUED. OP CONSTABLES. I AM now to consider the office of a constable. This officer, and the office which he holds, are often treated with a degree of disrespect ; but very improperly and very unwisely. In a government founded on the authority of the people, every public officer is respectable ; for every public officer is a free citizen : he is more ; by other free citizens he is invested with a portion of their power. Besides ; the powers and duties of constables, if pi-operly and effectually exercised and discliarged, are of real im- portance to the community ; and their public utility should rescue them from contempt. The antiquity as well as the usefulness of the office is very great. Of its original it may be said, as we are informed by my Lord Bacon,i caput inter nuhila condit ; for its authority was granted upon the ancient laws and customs of the kingdom, practised long before the conquest. It was intended and instituted for the conservation of the peace, and for repressing every kind of annoyance and disturbance of the people. This was done by way of prevention and not of punishment ; for a constable has no judicial power to hear or determine any cause. Upon a probability of a breach of the peace, as whea 1 4 Ld. Bac. 94. mi OF CONSTABLES. 2G3 ■warm words have passed, the constable may command the parties to keep the peace, and depart and forbear. When an affray is made, he may part those engaged in it, and keep them asunder. He may arrest and commit the breakers of the peace ; and, if they will not obey, he may call power to his assistance.^ If an affray is in a house he may break the doors open to restore and preserve the peace. If an offender fly into another district or county, the constable may make fresh pursuit and take him. To prevent as well as to quell a breach of the peace, he may command all persons to assist him ; and those, who refuse, may be bound over to the sessions and fined.^ It is the duty of a constable to execute, with speed and secrecy, all warrants directed to him ; and not to dispute the authority of him who issues them ; provided the mat- ter in question is within his jurisdiction.* The power and duty of constables are extended to a great variety of instances by a number of acts of assembly, which have been passed in Pennsylvania. In cases of necessity, a constable has power to appoint a deputy.* There are two kinds of constables ; a high constable and a petty constable. Their authority is the same in substance, and differs only in point of extent.^ To appoint men of low condition to tlie office of con- stable, is, according to my Lord Bacon,^ a mere abuse and degeneracy from the first institution. They ought, says he, to be chosen from among the better sort of residents. I have now finished my account of the judicial depart- ments of the United States and Pennsylvania ; and, with it, the description of their governments and constitutions. To the government and constitution of every other state ' 4 Ld. Bac. 96. « Wood. Ins. 87. " Id. ibid. < Ld. Bac. 98. * 4 Ld. Bac. 98. « Id. 96. 264 LECTURES ON LAW. in the Union, my remarks and illustrations will, generally, be found applicable. In those instances, in which a strict application cannot be made, still, I flatter myself, my re- marks and illustrations will throw some light upon the respective advantages or disadvantages of institutions, which cannot be measured by the same common standard. CHAPTER X. OF COKPOKATIONS. In a former part of my lectures,' after having de- scribed a state, I observed, that, in a state, smaller societies may be formed b}' a part of its members : that these smaller societies, like states, are deemed to be moral persons, but not in a state of natural liberty ; because their actions are cognizable by the superior power of the state, and are regulated by its laws. I mentioned, that, to these societies the name of corporations is generally ap- propriated, though somewhat improperly ; for that the term is strictly applicable to supreme as well as to inferior bodies politic. In obedience, however, to the arbitress of language, I shall designate those smaller societies by the name of corporations ; and to the consideration of them I now proceed. A corporation is described to be a person in a political capacity created by the law, to endure in perpetual suc- cession.^ Of these artificial persons- a great variety is known to the law. They have been formed to promote and to perpetuate the interests of commerce, of learning, and of religion. It must be admitted, however, that, ill too many instances, thpse bodies politic have, in their progress, counteracted the design of their original forma- tion. Monopoly, superstition, and ignorance have been -the unnatural offspring of literary, religious, and coni- 1 Ante, vol. 1, p. 272. ^ Wood. Ins. 111. 265 266 LECTURES OjST LAW. raercial corporations. This is not mentioned with a view to insinuate, that such establishments ought to be pre- vented or destroyed : I mean only to intimate, that they should be erected with caution, and inspected with care.' P In colonial times there were no private corporations purely for profit, the ownership of which was in the inhabitants of America. The tea which was destroyed at Boston " by parties unknown " was the property of the East India Company. In 1790 there were few private corporations organized for profit, the most important one was probably the Bank of North America ; consequently the subject was of little commercial Importance, and suggested nothing of interest in relation to the great social problems of self-government. To-day the case is vastly different. Great combinations of individual capital constitute, under legislative sanction, huge corporations in which individual obligation and individual duty to the state is easily lost sight of. The chief end of the corporation is neither the glory of God nor the pub- lic welfare, but financial gain. It may be safely ventured that the chief menace to individual liberty (and there can be no other) is the ovei-pow- ering influence of the corporations. From the standpoint of the political economist the seeds of despotism have already taken root. We have among us great corporations owned and controlled by sub- jects of foreign nations. President John Adams, in his Inaugural ad- dress, said : "We should be unfaithful to ourselves if we should ever lose sight of the danger to our liberties, if anything partial or extraneous should infect the purity of our free, fair, virtuous, and independent elec- tions. If an election Is to be determined by a majority of a single vote, and that can be procured by a party through artifice or corruption, the government may be the choice of a party for its own ends, not of the nation for the national good. If that solitary suffrage can be obtained by foreign nations by flattery or menace, by fraud or violence, by terror,, intrigue or venality, the government may not be the choice of the Amer- ican people, but of foreign nations. It would be but repeating wlial. every one knows to point out the corrupting influence of corporations at primaries, at elections, in council chamber and legislative hall. The genii of the corporation is ever present, till the ward heeler is tolerated and the lobbyist actually respectable. Constitutional provisions may declare and party platforms fulminate the originally truthful statement, that the object of civil government is the preservation of liberty and tlie protection of private right, but when tlie courts declare that the state police power (which is the only place where the power can exist) must give way before interstate commerce (which can only consist in private intercourse and traffic for gain), it is wise to remember that a frequent recurrence to fundamental principles is necessary for the preservation of liberty. OF COEPORATIONS. 267 In Englabd, corporations may exist by the common law, by act of parliament, by prescription, and by charter from the king.^ The king and the parliament are corporations by the force of the common law.^ The modern corporation is a power not dreamed of by the framers of the constitution ; and the combination of corporations which is desig- nated by the name of a pool or trust is a conception which can only be understood by close examination, and which can be viewed with com- placency only by those whose sense of responsibility as a citizen is blunted by self-interest. The corporation problem is the greatest problem confronting the peo- ple. It is not the most difficult of solutions from a legal standpoint, but from a practical point of view the case is otherwise. The following is a sample of items frequently seen in our great daily newspapers : " The different street railway lines in Philadelphia and its suburbs have been united in one great corporation. An officer of one of the con- solidated companies speaks enthusiastically of the saving of money that would ensue. He said : ' This means that there will no longer be a con- test for the control of common councils. This item, with other econo- mies along similar lines, will mean a saving of $500,000 every year.' The words ' similar lines ' refer, doubtless, to legislative expenditures and the sums paid to city and other officials to secure their favor. Using strong words, but proper ones, the corruption and blackmail outlay of the Philadelphia companies has been half a million a year. Much of this expenditure was due to the fact that rival companies were compet- ing for franchises, and the highest bidder got them. Competition whicli breeds such corruption is not altogether desirable." The melancholy fact is not that these things are known, but that their existence is viewed with complacency, and that men who are share- holders and officers of corporations known to be guilty of such practices are respectable instead of being classed as outlaws. To such an extent has the public sense of our citizens degenerated, that official reports have actually been published enumerating expenditures of money among legislators to influence legislation. This condition is an unerring symptom of disease in the body politic. It has been a frequent source of gratification to draw parallels between our institutions and some features of the ancient republics. And we may profitably draw a parallel between the cause of the downfall of Athens and the vulnerable point in our own armor, for the power of arms cannot overcome us ; if the experiment of self-government fails, it 1 10 Rep. 29 b. 2 Wood, Ins. 112. 268 LECTURES ON LAW. In the United States, and in Pennsylvania, corporations can only exist by the common law, or by virtue of legisla- tive authority. This authority, however, may be exer- miist be through the degenerating influence of a blunted morality. In the third Philippic Demosthenes said: "But what is the cause of the mischief ? There must be some cause, some good reason, why Greeks were so eager for liberty then, and now eager for servitude. There was something, men of Athens something in the hearts of the multitude then, which there is not now, which overcame the wealth of Persia and maintained the freedom of Greece, and quailed not under any battle by land or sea, the loss whereof has ruined all and has thrown the affairs of Greece into confusion. What is this ? Nothing subtle or clever ; sim- ply that whoever took money from aspirants for power, on the corrup- tors of Greece, were universally detested ; it was dreadful to be con- victed of bribery. . . . But now all such principles have been sold in open market ; and those imported in exchange, by which Greece is ruined and diseased — what are they ? Envy when a man gets a bribe, laughter if he confesses it. Mercy to the convicted, hatred to those that denounce the crime — all usual attendants upon corruption." The language of the late Justice Miller in a comparatively recent case in the United States court refers to the same principles. In a republican government, like ours, where political power is reposed in representatives of the entire body of the people, chosen at short inter- vals by popular elections, the temptations to control these elections by violence and by corruption is a constant source of danger. Such has been the history of all republics, and, though ours has been comparatively free from both these evils in the past, no lover of his country can shut his eyes to the fear of future danger from both sources. If the recurrence of such acts as these prisoners stand convicted of are too common in one quarter of the country, and give omen of danger from lawless violence, the free use of money in elections, arising from the vast growth of recent wealth in other quarters, presents equal cause for anxiety. Ex parte Yarbrough, 110 U. S. 666. To suggest a remedy is not beyond the capacity of most men, but to apply one in the face of the present state of the division of power is another question. The corporations are created by law ; the future creation of them should, like the naturalization of aliens, be hedged about by every safeguard and limitation put upon their period of exist- ence and power to hold property. While it may have been wise to be extremely liberal in the granting of public franchises, the danger point has been passed and the private corporations should no longer be per- mitted to do, even under public supervision, what the public can as well perform, and lighten the burden of the people at large. OF COKPOKATIONS. 269 cised by a power delegated by the legislature ; as lias been done, in this commonwealth,^ with regard to churches. Upon the same principle, the king, in England, may com- municate to a subject the power of erecting corporations, and may permit him to name the persons of whom they shall be composed, and the authority which they shall en- joy. Still, however, it is the king, who really erects them ; the subject is only his instrument ; and the act of the instrument becomes the act of its mover, under the well-known maxim, " qui facit per alium, facit per se." ^ To everj' corporation a name must be assigned ; and by that name alone it can perform legal acts.^ When a corporation is duly established, there are many lowers, rights, and capacities, which are annexed to it tacitly and of course. Under the present system public franchises are the instruments of en- riching individuals at the public expense, or by what amounts to the same thing, permitting the exaction of a charge for services largely in excess of the cost, and allowing the profit to become the property of the individual. Thus the infant industry, which was to serve and enrich the people, exacts tallage from them, corrupts their representatives and makes fat the individual managers, very frequently profiting nothing to the shareholders. What with watered stock and manipulated markets, the history of our corporations dealing with the public is rank with cor- ruption. The whole course of the development of these institutions is strewn with the wrecks of great men, who by their talents might have become high in the ranks of statesmen, but have fallen under the blight of the corrupting influence of these unnatural children who despoil those who create them. " What shall it profit a man ?" The facts connected .with the corporation problem are very ably pre- sented by Wm. W. Cook in a little work bearing that title, which derives additional value from the fact that he is the author of a very able legal treatise upon corporation law, and is a corporation lawyer of high stand- ing and a very wide reputation. The writings of Professor Richard T. Ely are full of valuable facts and interesting views upon this question.] 1 3 Laws Penn. 40. ^ jq Rep. 33 b. 1 Bl. Com. 474. ' 10 Rep. l-.;2. 270 LECTURES ON LAW. It lias perpetual succession, unless a period of limitatiorr be expressed in the instrument of its establishment. Thi» succession is, indeed, the great end of an incorporation ; and, for this reason, there is, in all aggregate bodies pol- itic, a power necessarily implied of iiUing vacancies by the election of new members.-' The power of removing any of its members for just cause, is a power incident to a corporation. To the order and good government of corporate bodies, it is adjudged necessary that there should be such a power.^ Another and a most important power, tacitly annexed to corporations by the very act of their establishment, is the power of making by-laws.^ This, indeed, is the prin- cipal reason for erecting many of the bodies corporate. Their nature or their circumstances are peculiar; and provisions peculiarly adapted to them cannot be expected from the general law of the land. For this reason, they are invested with authority to make regulations for the management of their own interests and affairs. These regulations, however, must not be contrary to the over- ruling laws of the state ; for it will be remembered, that these smaller societies,''though moral persons, are not in a state of natural liberty. Their private statutes are leges sub graviore lege. " Sodales, legem quam volent, dum nequid ex publica lege corrumpant, sibi ferunto," is a rule as old as the twelve tables of Rome.* The general duties of every corporation may be collected from the nature and design of its institution : it should act agreeabl}'- to its nature, and fulfil the purposes for which it was formed. But corporations are composed of individuals ; those individuals are not exempted from the failings and frailties of humanity ; those failings and frailities may lead to a 1 1 Bl. Cora. 475. 2 j Burr. 53fl. « Ld. Ray. 498. Hob. 211. 1 Bl. Com. 47.5. < 1 Bl. Com. 476. OF CORPOEATIONS. 271 "deviation from the end of their establishment. For this reason, as has already been observed, they ought to be inspected with care. The law has provided proper per- sons with proper powers to visit those institutions, and to correct every irregularity, which may arise within them. In England, it has, by immemorial usage, appointed them to be visited and inspected, in the court of king's bench, according to the rules of the common law.'^ We have formerly seen,^ that the powers of the court of king's bench are vested in the supreme court of Pennsylvania. A corporation may surrender its legal existence into the hands of that power, from which it was received. From such a surrender, the dissolution of the body corporate •ensues. An aggregate corporation is dissolved by the natural death of all its members.^ By a judgment of for- feiture against a corporation itself, it may be dissolved but not by a judgment of ouster against individuals. God forbid— such is the sentiment of Mr. Justice Wilmot * — that the rights of the body should be lost or destroyed by the offences of the members. Suffice it to have said thus much concerning corpora tions, or subordinate societies established within the society at large. » Id. 481. 2 Ante, p. 97. 8 3 Burr. 186T. ♦ Id. 1871. CHAPTER XI. OP CITIZENS AND ALIENS. Let us proceed to investigate still farther the com- ponent parts of which civil government and all its subor- dinate establishments consist. They consist of citizens. I have already observed ^ that the social contract is a contract of a peculiar kind ; that when correctly analyzed, it is found to be an assemblage of agreements equal, in number, to the number of individuals who form the society ; and that, to each of those agreements, a single individual is one party, and all the other individuals of the society are the other party.^ The latter party I have considered heretofore ; and have called it the people. The former party I am now ta consider ; and, in order to avoid confusion, I call it, in this discussion, the citizen ; and when I shall have occa- sion to refer to more subordinate agreements than one, I shall call the individuals, parties to them, by the name of citizens. . I know that the term citizen is often applied to one' of the more numerous party — to one of the people : and I shall be obliged to take the description of a citizen from the character which he supports as one of the people. But 1 Ante, p. 168. 2 This raises again the question who are the people, and illustrates the consequences which flow from an erroneous assumption of a first principle. See Appendix. Note A. 272 OP CITIZENS AND ALIENS. 27S you will easily perceive, that the same person may, at dif- ferent times, act or be viewed in different characters ; and though his description be taken from one of them, the account of his duties and of his rights too may, on a par- ticular occasion, be referred to the other. This I have chosen to do, rather than to introduce an unknown phrase^ or to use a known phrase in a new signification. Besides, the expression is frequently employed also in the sense in which I now use it. " Generally speaking," says the great political authority,^ Aristotle, " a citizen is one par- taking equally of power and of subordination." A citizen then — to draw his description as one of the people — I deem him, who acts a personal or a represented part in the legislation of his country .^ He has other rights ; but his legislative I consider as his characteristic right. In this view, a citizen of the United States is he, who is a citizen of at least some one state in the Union : for the members of the house of representatives in the national legislature are chosen, in each state, by electors, who, in that state, have the qualifications requisite for electors of the most numerous branch of the state legisla- ture.^ In this view, a citizen of Pennsylvania is he, who has resided in the state two years ; and, within that time, has paid a state or county tax : or he is between the ages of twenty-one and twenty-two years, and the son of a citizen.* I have, on another occasion,^ traced the description of a citizen in every other state of the Union : to your recollec- tion of that investigation, and to the constitutions of the several states, I now refer you. When a man acts as one of the numerous party to the agreements, of which I have taken notice ; it is his right, » 1 Rus. Anc. Eur. 362. « See Appendix. Note A. * Cons. IT. S. art. 1, s. 2. * Cons. Pena. art. 3, s. 1, * Ante, pp. 18-22. 274 LECTURES ON LAW. according to the tenor of his agreements, to govern ; he is one of the 'people. When he acts as the single party to that agreement, which he has made with all the other members of the society ; it is his duty, according to the teuor of his agreement, to obey; he is a single citizen. Of this agreement, indeed, it is impossible to ascertain all the articles. FrOm the most obvious deduction of reason, however, one article may be specified, beyond all possi- bility of doubt. This article, of prime importance, is — that to the public will of the society, the private will of every associated member must, in matters respecting the social union, be subordinate and submissive. The public will of the society is declared by the laws. Obedience, there- fore — civil obedience — obedience to the laws and to the administration of the laws — this is a distinguishing feature in the countenance of a citizen, when he is seen from this point of view. That men ought to be governed, seems to have been agreed on all hands : the reason is, that, without govern- ment, they could never attain any high or permanent share of perfection or happiness. But the question has been — by whom should they be governed? And this has been made a question, by reason of two others — by whom can they be governed ? — are they capable of governing them- selves ? To this last question, Mr. Burke, in the spirit of his late creed,^ has answered in the negative. " Society," isays he, " requires not only that the passions of individ- uals should be subjected, but that even in the mass and body as well as in the individuals, the inclinations of men should frequently be thwarted, their will controlled, and their passions brought into subjection. This can only be done hy a power out of themselves." This negative answer has been, from time immemorial, the stronghold of tyranny : 1 Kefl. on Fr. Rev. 47. OF CITIZENS AND ALIENS. 275 siiid if this negative answer be the true one, the strong liold of tyranny is, in fact, impregnable to all the artillery of freedom. If men should be governed ; and if they can- not govern themselves ; what is the consequence ? They must be governed by other masters. An opinion, however, has, by some, been entertained, that the question, which I last mentioned, may receive an answer in the affirmative. Men, it has been thought, are capable of governing themselves. In the United States, this opinion, which heretofore rested chiefly on theory, has lately been put in a train of fair practical experiment. That this experiment, to human happiness so interesting, may be crowned with abundant and glorious success, is, of all things in this world, the " consummation most devoutly to be wished." But to its glorious and abundant success, the obedience of the citizens is, of a necessity, absolute and supreme. The question, which has been proposed— the question, in the negative answer to which tyranny has triumphed so long and so generally — the question, concerning which philosophers and patriots have indulged, and been pleased with indulging, a contrary sentiment — the question, which in the United States, is now put upon an experiment — this all-important question is — not merely nor chiefly — are men capable of governing ? Of this, even tyrants will admit the affirmative; and will point to themselves as living proofs of its truth. But the question is — are men capable of governing themselves ? In other words ; are they qualified — and are they disposed to be their own masters ? For a moral as well as an intellectual capability is involved in the question. In still other words ; are they qualified — and are they disposed to ohey themselves f For to govern- ment, the correlative inseparable is obedience. To think, to speak, or to act, as if the former maj' be exercised, and, at the same time, the latter may not be performed, is to 18 276 LECTUEES OS LAW. think, to speak, or to act, in a manner the most contradic- tory and absurd. By a long and minute deduction, I proved, in a former lecture,^ that, on the true principles of freedom, a man is. the only human power, by whom he himself can be bound. It requires but a very small variation of phrase, and none of sentiment, to say, that on the true principles of freedom, man is the only human power, by whom he himself can be (/overned. Are we made so waywardly, that what, in principle, is true and right, must, in practice, be false and wrong ? Surely not. Is the safety of man .endangered by obedience ? What can be a source of greater security, than to be governed only by a law, which has been made by himself, and by others, with whom he participates a general identity of interest, and a perfect equality of duties and of rights ? Is the freedom of man infringed by performing the service of obedience to such a law, made as has been men- tioned ? This service bears, we think, a resemblance as near as, being human, it can bear, to that service, which, with a propriety truly striking and strong, is denominated " perfect freedom." Is the dignity of man degraded by observing a law ? The Supreme of Being ! — he himself worketh not without a rule ! In a moral view, self government increases, instead of impairing, the security, the liberty, and the dignity of the man ; in a political view, self government increases, in- stead of impairing, the security, the liberty, and the dignity, of the citizen. Attend now to the result of the whole. — In a free and well constituted government, the first duty of its every member is— obedience to the laws. That they be true 1 Ante, vol. 1, p. 190, et seq. OF CITIZENS AND ALIENS. _ 27T and faithful to themselves, is the allegiance, which a legitimate republic requires from her citizens : to them- selves they cannot be true and faithful, unless they obey as well as make the laws — unless, in the terms in which a citizen has been defined, they partake of subordinationi as well as of power.^ [' In the celebrated allegiance cases of South Carolina, which were de- cided in 1834, and where the question was as to whether the citizen owed the paramount allegiance to the State or to the Nation, after exhaustive and very able arguments of counsel examining the very fundamental principles of oui' government, a decision which was remarkable from the fact that, notwithstanding the writing of Calhoun, the nullification spirit of the large portion of the citizens of South Carolina, it was decided in the teeth of the ordinance of nullification that the paramount allegiance was not to the. State. Judge O'Neall, in delivering liis opinion, comments upon the inapplica- bility to our institutions of the word allegiance, if used in its feudal sense. He says : — " I admit that in the feudal system, if arose out of the tenure by which land was holden from the lord paramount. This was the bond which could never be broken, because it took its origin in the connection which originally existed between the serf and the soil. It was hence that allegiance was held to be perpetual." " The history of England shows tliat the word is not even understood in her iJnchanging government of King, Lords, and Commons, in the sense in whicli it originally was. " Our forefathers, when they crossed the Atlantic, and sought in the wilderness, among its savages and beasts of prey, that personal security and freedom of opinion which they coulil not find at home, were still fol- lowed by this phantom of allegiance. " From the declaration of Independence, I tliink that allegiance, in its feudal sense, or in that in which it is understood in the English limited monarchy, became wholly inappropriate to our complex form of govern- ment. In any and every point of view in which 1 am able to consider the subject, allegiance in this country is due to the government of the people. I liave, therefore, and I shall use throughout this opinion, the term allegiance, because it is the most commonly used to denote the duty of the citizen to the government. But , I apprehend, it is wholly misapplied in the land of Washington and Franklin; or to be exclusively Carolinian, in the land of Kutledges, the Pickneys, the Middletons, the Hugers, the Heywards, the Draytons, and the Laurenses. Allegiance is properly the duty which the subject owes to the King, and whether per- sonal or derivative, is an luifit garb to clothe the republican. It is like putting on the statue of Washington the robe of the Caesars. Every on« 278 LECTUKES ON LAW. As a citizen of a republican government owes obedience to the laws ; so he owes a decent, though a dignified respect to those who administer the laws. In monarchies, there is a political respect of person : in commonwealths, there should be a political respect to office. In monar- chies, there are ranks, pre-eminences, and dignities, all per- sonal and hereditary. In commonwealths, too, there are ranks, pre-eminences, and dignities; but all official and successive. In monarchies, respect is paid without a prospect of return. In commonwealths, one may, next year, succeed, as an officer, to the respect, which, this year, he pays as a citizen. The dignities of office are open to all. You will be pleased to hear, that, with regard to this as well as to many other subjects, we have renewed, in our governments, the principles and the practice of the ancient Saxons. Between dignity and duty, no separation was made by them. In the early period of the Anglo-Saxon state, the allodial proprietors were numerous ; their estates were generally small ; and all were understood to be of the same rank and condition. Some, indeed, were dis- tinguished above others by their character and their talents ; but the superiority derived from this source was accom- panied with no legal pre-eminence or power.^ knows that it has no connection with or fitness for republican sim- plicity. Our duty is obedience to the government of the people; and if there is any other tie existing in this country, I have been unable to dis- cover it. ' ' What is to be understood by the government of the people ? I answer, the Constitutions of the State and the United States. " When we speak of citizens, we mean the people of a free government; and they stand in the relation to the government, as incurring in support of the institutions of freedom all the obligations which the subject owes to his king. It is allegiance in the dominions of the Autocrat of all the Russias; it is here constitutional obedience." The State ex rel. M'Cready v. Hunt, 2 Hill, South Carolina Re- ports, pp. 1-493. 1 Millar, 236.] OF CITIZENS AND ALIENS. 279 So likewise it was in the heroic ages of Greece : no distinction was then known among men, except the dis- tinction, truly honorable, which arose from a difference of abilities and merit.^ Titles of nobility in England, though now merely per- sonal, were, in their origin, altogether official. The her- etoch or duke was intrusted with a military department : the marquis was appointed to guard the frontiers or marches of the country : the alderman or earl was, as we formerly saw, the first civil officer of the shire. In the juridical history of England, the first arbitrary title of honor, without the shadow of office or duty annexed to it, makes its appearance so late as the reign of Henry the Sixth. Under a republican government, it is prudent as well as proper — it is the interest as well as the duty of the citizens, to show a political respect for office. In the government they have an interest: in every office and department of the government they have an interest : this interest requires, that every department and every office should be well filled : in a commonwealth, respect attached to office is frequently the principal inducement to its acceptance by those, who are qualified to fill it well. On the citizen under a republican government, a third duty, more severe, it may be thought, than either of the former, is strictly incumbent. Whenever a competition unavoidably takes place between his interest and that of the public, to the latter the former must be the devoted sacrifice. By the will and by the interest of the com- munity, every pi-ivate will and every private interest must be bound and overruled. Unless this maxim be established and observed ; it is impossible that civil government could be formed or supported. Fortunatej however, it is, that in a government formed wisely and administered impartially, 1 1 GilL 49. 280 LECTUKES OX LAW. this unavoidable competition can seldom take place, at least in any very great degree.^ [' Any institution which is inherently selfish and incapable of such self-denial as is here described is antagonistic to a republican government, and any personality which experience shows to be habitually selfish should be curtailed in rights, if not destroyed. The experience of the last thirty years demonstrates that the government, undA' undoubted power, but doubtful policy, has created and fostered a species of citizen, an artificial person, which displays several dangerous tendencies, among them is the following: The corporation, being an artificial person, lacks the moral obligation of the citizen, being incapable thereof. The corpo- ration for profit is essentially selfish ; it is so by nature, and experience has shown that they have been true to their nature. As an instrument of corruption and a means of plunder of the public at large and innocent shareholders the modern corporation finds no parallel in history. The State (in its broad sense) is a corporation composed of individuals who unite by voluntary consent, for mutual protection. Our form of gov- ernment is what is known as Republican, i. e., self-government by repre- sentatives, — self-restraint by the individual, and regard for the general weal on the part of the representative are the keystones of the struct- ure. The corporation is at war with both, and no one will deny the fact. The supposed duty of corporation oflBcers, coupled with personal interest, tends to obscure the higher duty of citizenship. The results of the cen- tury have demonstrated that there is nothing in the mere fact of citizen- ship which renders the citizen more faithful in obedience than the alle- giance of a subject. And hence politicians ask. Is self-government anything more than a beautiful theory ? All agree that it can only exist with intelligence and integrity as the woof and warp of the fabric. Are privileges (franchises) granted to favored individuals whicli give them an advantage over their fellow-citizens whereby the public suffer and an inequality is fostered, and is this done in relation to subjects where there is no necessity for delegating the matter to a private person or cor- poration, but, on the contrary, the matter is public in its nature and ca- pable of execution by the public for the public good and profit ? Then it follows tliat the public weal is sacrificed to private gain. If it is done knowingly this is treason in guilt, if thoughtlessly or under honest miscon- ception it is a mistake, but in either case fraught with the same evil consequences. Two editorial items clipped from the daily Chicago Tribune of July 28, 1895, will illustrate what has been done and what is the tendency. OF CITIZENS AND ALIENS. 281 If the sacrifice, which I have mentioned, is demanded and enforced by the public, when the competition does In some important respects the people of Glasgow, Scotland, have earned for their city the reputation of being perhaps the best governed in the world. They have done this by taking the administration of municipal affairs out of politics and putting it into the hands of business men, who not only have the ability to manage well but take a pride in administering the finances of the city economically, improving the phys- ical and moral health of their constituents, and putting as miich bright- ness and happiness into their lives as seems possible under the conditions they have to deal with. The public is supplied with water, gas, electric lighting, parks, baths, city railroads, ^nd clean streets, as well as police and fire protection, at a minimum of cost, all the business being con- ducted as economically as it could be if done without profit by private corporations. The secret of this almost anomalous success is stated to -be that politics, political pulls, rings, etc., are entirely unknown. The solid business-men of the municipality are willing to assume the «ares and burdens of office as aldermen, with no other remuneration than the good they share with other citizens and the consciousness of doing their duty, regarding themselves as directors of a great co-operative undertak- ing, with high duties and responsibilities, and not as professional office- Iholders, continually scheming to obtain places for friends and keep their ■own. Glasgow has the best water in the world, obtaining it from Loch Katrine, and Dublin is the oi(ly city that gets it cheaper. It supplies twenty-two candle-power gas to the people at the rate of 60 cents per ] ,0(JO cubic feet. Six years ago it bought out the city railway companies, and immediately after the purchase put on .300 new cars, 3,000 horses and 1,700 new men. It now is carrying per week 300,000 one-cent fares, 600,000 two-cent fares, 95,000 three-cent fares, and 20,000 four-cent fares, and it is contemplated to make a uniform fare of only two cents foi- all distances. The other departments are well managed, and all for the best interests of the citizens, good service being given at the lowest paying •cost. The sinking fund plan is applied to every enterprise undei municipal control in Glasgow, and it is stated to be the secret of success in its fi- nancial management. The present liabilities aggregate about forty million dollars, .30 per cent, of which is invested in the water service, and the as- sets are rated as worth fifty million dollars, the difference of ten millions standing on the pleasant side of the profit and loss account. It is ex- pected that within the next quarter of a century a large part of the in- debtedness, if not all of it, will have been cleared off, leaving the people to pay nothing more than the cost of current maintenance and repair. That is, provided the bad element does not obtain control in the mean- 282 LECTURES ON LAW. not unavoidably take place; or if it is demanded and en- forced farther or longer than the existing competition in- dispensably requires ; it is tyranny ; it is not government. time, which probably it will not. The corruptionist would find "fat pickings " there, if he ever should get into power and dared to encounter the consequences of robbing the "canny Scot" by means of political jobbery. It goes without saying that a similarly economical management of municipal affairs would be impossible in the big cities of the United States, so long as the bad classes exercise so much power as they now do, in filling places by dictation and misguiding for boodle on the one hand and immorality on the other. It is useless to say it can't be done when instances are at hand where it has been done. To say that the constitution may prbhibit this or that is easily adjusted by amending the constitution. The following editorial comment upon Justice Brown's Yale address and the address itself are clear presentation of facts. " The August 1895 number of the Forum contains the greater part of the address given last month before the graduating class of the Yale Law School by Justice Brown of the United States Supreme Court. Only brief extracts were published at the time it was delivered. Presenting, as it does, the views of a member of the highest American court regard- ing certain burning questions of the day it possesses a special value. If, says the Justice, any person had endeavored to forecast at the time of the ratification of the Federal Constitution the events of the coming hundred years he would have left out of his calculations altogether those two Inventions which have had the most influence on the progress of the century — the employment of steam for the purposes of transportation and of electricity for the transmission of intelligence. So, whoever as- sumes to prophesy what the twentieth century will bring forth, is likely to be as far astray as would have been the prophet of 1789, who could not foresee the consequences of steam and electricity. But there are certain secondary effects, which have become apparent within the last third of a century, which tlireaten not only to affect th& political future of every State but also to revolutionize the entire produc- tive industry of the world. They may be summed up in the one word "consolidation." The small States are absorbed by the great ones. Many small enterprises are replaced by a few large ones. Great corpo- rations monopolize the production of all the comforts and many of the necessaries of life. The small employer is disappearing. The processes of combination, says the Justice, have not only put practically the entire manufacturing industry of the country into the hands of corporations, but have enabled the latter to put an end to com- OF CITIZENS AND ALIENS. 283 The citizen has rights as well as duties : the latter he is obliged to perform : the former he is entitled to enjoy petition among themselves by the creation of trasts. On the other hand, labor is gradually consolidating, with the avowed purpose of dictating the terms upon which the productive and transportation industry of the country shall be carried on. The reconciliation of this strife between capital and labor, if possible, is the great social problem of the coming century. The Justice does not believe that the solution lies in the triumph of Socialism and the destruction of private property, but there may be a. gradual enlargement of the functions of government and the ultimate control of national monopolies. He can see no sound reason why the government may not own railroads as well as highways, and why a city may not run street-railways, gas-works, etc. But while he has no doubt of the ultimate settlement of these social problems, the Justice sees certain perils which menace the immediate future of the country, and even threaten the stability of its institutions. They are municipal misgovemment, corporate greed, and the tyranny of labor. Concerning the first of these he has nothing to say that has not been said before, nor does he suggest a remedy, except that if universal suffrage fails and " we cannot have government by the whole people, let us have government by the better classes and not by the worst." Corporations within their proper sphere are a blessing, but corporate powers have too often been grossly abused. Worse than this, however, is the combination of corporations in trusts to limit production, stifle competition, and monopolize the necessaries of life. If no student can light his lamp without paying tribute to one com- pany ; if no housekeeper can buy a pound of meat or of sugar without swelling the receipts of two or three all-prevailing trusts — what is to pre- vent the entire productive Industry of the country becoming ultimately absorbed by a hundred gigantic corporations ? But tlie most immediate danger, says the Justice, is the tyranny of labor. It arises from the apparent inability of the laboring-man to perceive that the rights he exacts he must also concede. If, for instance, an em- ployer of labor should discharge an employe or refuse to hire him be- cause of 9. difference between them as to wages, and should then forbid his obtaining employment elsewhere, and should assault the person and burn the property of any one who proposed to give him work, he would naturally be considered a fit subject for mental treatment ; yet a year never passes in which outrages of this description are not perpetrated vmder the name of "rights of labor." Men are harried, assaulted, and stoned simply because they are willing to work for less than their assail- •284 LECTtTRES ON LAW. •or recover. To that original contract of association, to •which, in our reasonings concerning government, an ap- peal must so often be made, he is a party ; nay, in point ■of right, a party, voluntary, independent, equal. On one side, indeed, there stands a single individual : on the other side, perhaps, there stand millions : but right is weighed by principle ; it is not estimated by numbers. From the necessity of the case, as -was shown on a former occasion,^ if a controversy arises between the parties to the social tigreement, the numbers, or a selection from the numbers, must be the judges as well as one of the parties. But, because those of one party must, from the necessity of tlie peculiar case, be the judges hkewise ; does it follow, that they are absolved from that strict obligation, by which «very judge is sacredly bound to administer impartial justice? Does it follow, that they may with avidity, listen to all the interested suggestions, the advice of •which a party would pursue? When the same person is ants, while property is burned, public travel arrested, and large cities reduced to hunger, that great corporations may be compelled to employ -workmen at wages fixed by themselves. This, too, in a nominally free country. Such conditions the Justice says are intolerable. And yet he does not think the outlook for a permanent peace between capital and labor an encouraging one, though he thinks a compromise may be effected on the "basis of profit-sharing. But in spite of these threatening dangers Justice Brown says that " so long as we can preserve the purity of our courts we need never despair of the Republic." With diflSdence it is suggested that while the sheet-anchor of our hope may be an able and an honest court, the foundation of our political structure must be laid beneath either the legislative, the executive or the judicial branches of the Government ; these pillars rest upon the ■broad basis of the people, and if the hearts of the people are corrupt the structure falls of its own weight. As Demosthenes pointed out in the Third Phillipic, a quotation from which is given (ante, p. 368), the virtue ■must reside in the hearts of the people. Whatever corrupts them is noxious, whoever leads them astray is alien-hearted, whether native or alien bom.] 1 Ante, p. 169. OF CITIZENS AND ALIENS. 285 and must be both judge and party ; the character of the judge ought not to be sunk in that of the party ; but the character of the party should be exalted to that of the judge. When questions — especially pecuniary questions — arise between a state and a citizen — more especially still, when those questions are, as they generally must be, submitted to the decision of those, who are not only parties and judges, but legislators also ; the sacred impartiality of the second character, it must be owned, is too frequently lost in the sordid interestedness of the first, and in the arro- gant power of the third. This, I repeat it, is tyranny : and tyranny, though it may be more formidable and more oppressive, is neither less odious nor less unjust — is neither less dishonorable to the character of one party, nor less hostile to the rights of the other, because it is proudly prefaced by the epithet — legislative. He who refuses the payment of an honest demand upon the public, because it is in his power to refuse it, would refuse the payment of his privaie debt, if he was equally protected in the refusal. He who robs as a legislator, because he dares, would rob as a highwayman — -if he dared. And are the- public gainers by this? Even if they were, it would be no consideration. The paltry gain would be but as dust in the balance, when weighed against the loss of character — for as the world becomes more enlightened, and as the principles of justice become better understood, states as well as individuals have a character to lose — the paltry gain, I say, would be but as dust in the balance, when weighed against the loss of character, and against the many other pernicious effects which must flow from the example of public injustice. But the truth is, that the public must be losers, instead of being gainers, by a conduct of this kind. The mouth, which will not utter the sentiments of truth in favor of an 286 LECTURES ON LAW. honest demand, may be easily taught to repeat the lessons of falsehood in favor of an unjust one. To refuse fair claims, is to encourage fraudulent ones upon the common- wealth. Little logic is required to show, that the same vicious principles and dispositions which oppose the former, will exert their selfish, or their worse than selfish, influence to support the latter. I think I have proved, that if the sacrifice, which has been mentioned, is demanded and enforced by the public, Avhen the competition between public and private interest does not take place, it is tyranny, and not government ; folly, and not wisdom. I have added, that if this sacrifice is demanded and enforced farther or longer than the com- petition indispensably requires, this, too, is tyranny, and not government. This likewise it is easy to prove. There may be times, when, to the interest, perhaps to the liberty of the state, every private interest and regard ought to be devoted. At those times, such may be the situation and the peril of the commonwealth — for it is in perilous and distracted times, that, by the citizens, ex- traordinary exertions of duty ought to be made — at those times, a citizen obeys his duty's and his country's sacred call ; lie makes the necessary sacrifices, without expressly stipulating for a recompense : of demanding such a stipu- lation, the impropriety and the indelicacy may be equally evident. Great sacrifices and great exertions are made with faithfulness and zeal; perhaps, with considerable success. The perils disappear : to distraction and danger, peace and serenity succeed: the commonwealth becomes flourishing and opulent. Ought the sacrifice, which, in the hour of her distress and danger, was made at her call, to be continually enforced and demanded by her, after the danger and distress are over? But this sacrifice is de- manded and enforced continually, if this citizen has neither received, nor had it in his power to recover, that OF CITlZEJifS AND ALIENS. 287 recompense, which is just. This case — if such a case has «ver happened — may go without any actual redress ; but it can never go without well-grounded complaint. There is a sacrifice of another kind, not indeed so great, but, on some occasions, very vexatious, whicli is required of a citizen under a republican government, unnecessarily, and against his rights. He is frequently pestered with a number of frivolous, ambiguous, perplexed, and contradic- tory laws. The very best constitutions are liable to some •complaints. What may be called the rage of legislation is a) distemper prevalent and epidemical among republican governments. Every article of the social contract cannot be ascer- tained : some of its leading principles cannot easily be mistaken. One certainly is, that, in a free state, the law should impose no restraint upon the will of the citizen, but such as will be productive of advantage, public or private, sufficient to overbalance the disadvantages of the restraint : for, after all, we shall find that the citizen was made for the sake of the man. The proof of this advan- tage lies upon the legislature. If a law is even harmless, the very circumstance of its being a law, is itself a harm. This remark might be remembered, with profit, in the revision of many codes of law. In a word ; government and human laws are necessary ; if good, they are inestim- able, in the present state. It must be admitted, how- ever, that they are a burden and a yoke : they should re- semble that yoke which is easy, and that burden which is light. The citizen under a free government has a right to think, to speak, to write, to print, and to publish freely, but with decency and truth, concerning public men, public bodies, and public measures. Thus much concerning the duties and the rights of a private citizen. 288 LECTUKES OX LAW. I am next to treat of aliens. homo sum; Kihil human! alienum a me puto. If this humane maxim had prevailed, as it ought to have- prevailed, in the establishment of government, and the formation of laws ; the title, which relates to aliens,, would have be&n of an import very different from what we generally find it to be. The contracted and debasing spirit of monopoly has not been peculiar to commerce ; it has raged, with equal vio- lence, and with equal mischief, in law and politics. In ancient times, every alien was considered as an enemy. The rule, I think, should be reversed. None but- an enemy should be considered as an alien — I mean — as ta the acquisition and the enjoyment of property. The rights of citizenship are the rights of parties to the social com- pact. Even to these, aliens should be permitted to accede upon easy terms. This subject is of high importance to the United States ;: to Pennsylvania, in particular. When I speak of the contracted rule, which prevailed in ancient times, I mean to speak, and I wish to be under- stood, with some illustrious exceptions. These deserve to be distinctly pointed out. From them, valuable instruction may be drawn. The general policy of the Egyptians was unfriendly tO' strangers. It is even said of them, that they were accus- tomed to kill, or reduce to slavery, all those whom they found upon their coasts ; except at one city only, at which they were allowed to land and trade. But Psammeticus,. one of their princes, observed maxims of a more humane and enlightened nature. He favored navigation in his- seas ; he opened his ports to the commerce of all nations ; and lie granted every kind of encouragement to every one„ OF CITIZENS AND ALIENS. 28i> who would settle in Egypt. Amasis, one of his succes- sors, governed, by the same principles, his. behavioi' to- wards foreigners. He conferred many benefits upon the Grecians ; and even allowed them to erect altars and temples. Under the government of Amasis, it is ob- served, Egypt was perfectly happy .^ Under the famous Theseus, the rival and the friend of Hercules, strangers were invited to participate the privi- leges of Athens : from all parts the invitation was ac- cepted ; and the new citizens were incorporated witli the ancient Athenians. Everything now, it is added,, seemed favorable to his views : he governed a free people- with moderation and benevolence ; he was esteemed and beloved by the neighboring nations ; and he enjoyed a foretaste of that profound veneration, with which succeed- ing ages gradually honor the memory of great men.^ This policy, enlarged and generous, was continued in Attica, during manj' ages after Theseus ; and rendered that celebrated country the most frequent resource of the^ miserable. On a particular occasion, the descendants of the great Hercules, divested of their possessions and driven into banishment by one of the vicissitudes of the times, en- joyed the advantages of the policy introduced by the friend of their ancestor : they were received by the Athenians.^ When it was, in the time of Lysias, attempted to con- tract the foundation of the Athenian government ; this part of their ancient policy is, in his oration against that attempt, mentioned with particular respect. " As to my- self, I hold it to be the best security for the state, that all have an equal share in the government. When formerly we built walls, and acquired a fleet, and money, and allies, we regarded not these advantages as obtained only for ourselves ; we shared them with the Eubseans, by estab- lishing the right of intermarriage. Such were once our 1 3 Gos. Or. Laws, 15. 16. - 1. Anac. 31. 32. » 1. Gill 69 290 LECTURES ON LAW. principles : by bestowing on strangers the honors of our country, we rendered them our friends : shall we now, by degrading our fellow citizens, render them our ene- mies ? Never let this take place." ^ " By those states," says my Lord Bacon, in his book concerning the augmentation of the sciences, " who have easily and liberally communicated the right of citizenship, greatness has been most successfully acquired. No com- monwealth opened its bosom so wide for the reception of new citizens, as the commonwealth of Rome. The for- tune of the empire was correspondent to the wisdom of the institution ; for it became the largest on the face of the earth. It was their custom to confer the right of citizen- ship in the most speedy manner ; and in the highest de- gree too — I mean not only the right of commerce, the right of marriage, the right of inheritance ; but even the right of suffrage, and the right to the offices and the hon- ors of the republic. So that it may be said, not that the Eomans extended themselves over the whole globe, but that the inhabitants of the globe poured themselves upon the Romans. This is the most secure method of enlarging an empire." ^ My Lord Hale, another lawyer of eminent name, speaks in the same spirit. " The shutting out of aliens," says he, *' tends to the loss of people, which, laboriously employed, are the true riches of any country." ^ In the law of England, there is a distinction between two kinds of aliens — those who are friends, and those who are enemies. Among alien enemies a subdivision is made, or at least was made till lately, which must occa- sion some degree of astonishment. Alien enemies are dis- tinguished into such as are temporary, and such as are perpetual. Nay ; what is more ; this line of distinction, 1 Gil. Lys. and Isoc. 319. » 1 Ld. Bac. 245. 8 1 Bac. 76, Vent. 427. OF CITIZENS AND ALIENS. 291 •certainly never drawn by the peaceful spirit of Chris- tianity, is attempted to be marked by the progress of the Christian system. " All infidels " — these are the expres- sions of my Lord Coke in the report of Calvin's case — " all infidels are perpetual enemies ; the law presumes not that they will be converted ; between them, as with the devils, whose subjects they are, and the Christian, there is perpetual hostility ; and can be no peace ; " — for he for- tifies the favorite sentiment by a pleonasm : he goes farther — he attempts to fortify it by the language, tortured surely, of Christianity itself. " Quae autem conventio ■Christi ad Belial ; aut quas pars Mali cum infideli." ^ " Upon this ground," continues he, " there is a divers- ity between a conquest of the kingdom of a Christian king, and the conquest of that of an infidel. In the former case, the ancient laws of the kingdom remain, till they are altered by the conqueror: in the latter case, they are immediately abrogated; and, till new laws be established, the conqueror shall judge them according to natural equity." ^ The chfiracter of an opinion, like the character of a man, may be illustrated by tracing its history and pedigree. The opinion, that " the common law of England, as such, has no allowance or authority in the American plantations," is the bastard child of this bastard mother, begotten on her body by the Commentaries * on the laws of England. This very case of Calvin, and this very part of Calvin's case, is cited — none better could be cited — as the authority for an opinion, which was calculated to cut off the noblest inheritance of the colonies : to use, for once, a language technieally legal, the colonies were mulier, though they were puisne — they were legitimate, though they were joung. But to return to the subject of alienage — an alien, ac- 1 2 Cor. VI. 15. 2 6 Eep. 17. ^ i bj. com_ io7. 19 292 LECTURES ON LAW. cording to the notion commonly received as law, is one- born in a strange country and in a foreign society, lo- which he is presumed to have a natural and a necessary allegiance.' Error, as well as truth, is sometimes connected by a regular chain. A man is deemed a dangerous enemy or a suspicious friend to that country in which he wishes to reside, because he is previously deemed an appurtenant or a slave to that country in which he chanced to be born. Such is one of the consequences of " natural and necessary allegiance." Between alien friends, who are temporary subjects, and subjects naturalized or natural born, a species of subjects intermediate is known to the law of England. They are distinguished by the appellation of denizens. The power of denization is a high and incommunicable portion ^ of the prerogative royal. A denizen is received into the nation, like a person who is dropt from the clouds. He may acquire rights, but he cannot inherit them, not even from his own parent : he may transmit rights to his chil- dren, who are born after his letters patent of denization ; but not to those who were born before. A denizen may be moulded into a thousand fantastical shapes : he may be a denizen in tail, a denizen for life, a denizen for years, a denizen upon condition, a denizen in one court of justice, and an alien in another.^ Of those modifications, however, a subject naturalized is unsusceptible ; because, we are told, they would be inconsistent with the purity, the ab- soluteness and the indelibility of natural allegiance.* For a sound rule, we receive an unsound reason.^ 1 1 Bac. 76. ^ 1 Bl. Com. 374. 3 X Ills. 129, a. ♦ t Ins. 129, a. p Legislation in reference to denizens by name is not unknown in th& United States, but ordinarily the subject passes under the title of aliens. Such acts are referred to in the arguments of the case referred to as to the OF CITIZENS AND ALIENS. ^ 293 Between a subject naturalized and a subject natural born, the distinction is merely nominal as to private rights : it applies only to the manner, in which those rights are devolved. On one they are devolved by his birth : on the other, by the consent of the nation, expressed in the parliament. With regard, however, to public rights, the case is widely different. By statutes made even since the revolution, no subject naturalized can be a member of par- liament ; and no bill for naturalization can be received in either house of parliament, without such a disabling clause.' Britain seems determined to merit and to perpetuate, in political as well as geographical accuracy, the description, by which it was marked many centuries ago — — divisos toto oibe Britannos. What a very different spirit animates and pervades her American sons ! Indeed it is proper that it should do so. The insulated policy of the British nation would as ill befit the expansive genius of our institutions, as the hills, the ponds, and the rivulets, which are scattered over their island, would adequately represent the mountains, and rivers, and lakes of the United States. " In the new world " oath required of denizens in the 2 Hill s. c. 17. These denizens owe allegiance to the government under which they live." Quoted 16 Wallace U. S. 1.55. Mr. Webster, then Secretary of State, made, in i851, a report to the President in answer to a resolution of the House of Representatives, in which he said: " Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former alle- giance, it is well known that, by the public law, an alien or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a native-born subject might be, unless his case is varied by some treaty stipulation."] 1 1 Bl. Com. 374. 294 LECTURES ON LAW. — I speak now from one of the finest writers of Britain ^ — " in the new world nature seems to have carried on her operations with a bolder hand, and to have distinguished the features of the country by a peculiar magnificence. The mountains of America are much superior in height to those in the other divisions of the globe. From those lofty mountains descend rivers proportionably large. Its lakes are no less conspicuous for grandeur, than its moun- tains and rivers." We imitate, for we ought to imitate, the operations of nature ; and the features of our policy, like those of our country, are distinguished by a peculiar magnificence. In a former lecture,^ we have seen how easily the es- sential rights of citizenship can be acquired in the United States, and in every state of the Union. Let us now see, how liberally the doors are thrown open for admission to the public trusts and honors, as well as to the private rights and privileges, of our country. At the end of two years from the time, at which a foreigner " of good character " — for numbers without virtue are not our object — a former mode of " better peo- pling his majesty's plantations " is now fallen into dis- repute — at the end of two years from the time,^ at which a foreigner of good character sets his foot in this land of generosity as well as freedom, he is entitled to become, if he chooses,* a citizen, of our national government. At the end of seven years, a term not longer than that which is frequently required for an apprenticeship to the plainest trade, the citizen may become legislator ; for he is eligible as a representative in the congress of the United States.^ After having, in that capacity, undergone the honorable 1 2 Rob. Amer. 3, 4. 2 Ante, p. 18, et seq. * By the law now in force, a residence of five years is required. Laws IT. S. 7 cong. 1 sess. c. 28. Ed. * Laws U. S. 1 cong. 2 sess. c. 3, * Cons. U. S. art. 1 s. 2. OF CITIZENS AND ALIENS. 295 but short probationship of two years, the doors even of our national senate are opened as far as to receive him.^ In Pennsylvania, the citizen may become a representa- tive^ at the end of three, a senator,^ at the end of four, and governor* of the commonwealth, at the end of seven years. It would be tedious, and it is unnecessary, to multiply particulars, by going through all the sister states. In this, as in other respects, in which we have viewed them, we are still pleased with the facies, quails decet esse sororum. The rights and the disabilities of aliens with regard to property, especially with regard to landed property, forms a subject of investigation both interesting and nice. But, according to my uniform method, I postpone it until I arrive at the second great division of my system. The examination of general principles should precede that of particular rules. One opinion, however, I will now mention : it seems to be founded ©n the authority of Sir Henry Spelman and the Grand Custumier of Normandy. The opinion is, that the law, by which an alien is prohibited from holding lands, is an original branch of the feudal system ; because, by that system, no one could purchase lands, unless he did fealty to the lords, of whom they were holden ; and be- cause an alien, who owed a previous faith to another prince, could not take an oath of fidelity in a second sovereign's dominions.* » Cons. U. S. art. 1, s. 3. » Cons. Penn. art. 1, s. 3. 3 Cons. Penu. art. 1, s. 8. * Art. 2, s. 4. 5 1 Bac. 76. Tit. Alien. ^ Restrictions upon the right to take or transmit title to real estate exists in many states of the Union. There would seem to be no reason for distinguishing between holding real estate and chattels, but the right of aliens to own and control corporations is more dangerous than either and combines all the objectionable features of each. CHAPTER XII. OF THE NATUEAL BIGHTS OF INDIVIDFALS. We have now viewed the whole structure of govern- ment ; we have now ranged over its numerous apartments and divisions ; and we have examined the materials of which it is formed. For what purpose has this magnificent palace been erected? For the residence and accommoda- tion of the sovereign, man. Does man exist for the sake of government ? Or is government instituted for the sake of man ? Is it possible, that these questions were ever seriously proposed? Is it possible, that they have been long seriously debated ? Is it possible, that a resolution diametrically opposite to principle, has been frequently and generally given of them in theory ? Is it possible that a decision, diametrically opposite to justice, has been still more frequently and still more generally given concerning them in practice ? All this is possible : and I must add, all this is true. It is true in the dark ; it is true even in tlie enlightened portions of the globe. At, and nearly at the commencement of these lectures, a sense of duty obliged me to enter into a controversial dis- cussion concerning the rights of society : the same sense of duty now obliges me to enter into a similar discussion concerning the rights of the constituent parts of society — concerning the rights of men. To enter upon a discussion of this nature, is neither the most pleasant nor the most 296 OF THE NATURAL RIGHTS OF INDIVIDUALS. 297 «asy part of my business. But when the voice of obliga^ tion is heard, ease and pleasure must preserve the respect- ful silence, and show the cheerful acquiescence, which be- come them. What was the primaiy and the principal object in the institution of government ? Was it — I speak of the pri- mary and principal object — was it to acquire new rights by a human establishment ? Or was it, by a human es- tablishment, to acquire a new security for the possession ■or the recovery of those rights, to the enjoyment or ac- quisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficent Creator ? The latter, I presume, was the case : and yet we are told, that, in order to acquire the latter, we must surrender the former ; in other words, in order to acquire the security, •we must surrender the great objects to be secured. That man "may secure some liberty, he makes a surrender in trust of the whole of it." — These expressions are copied literally from the late publication of Mr. Burke.' Tyranny, at some times, is uniform in her principles. The feudal system was introduced by a specious and successful maxim, the exact counterpart of that, which has been advanced by Mr. Burke — exact in every particular but one ; and, in that one, it was more generous. The free and allodial proprietors of land were told that they must surrender it to the king, and take back— not merely " some," but — the whole of it, under some certain pro- visions, which, it was said, would procure a valuable object — the very object was security — security for their property. What was the result ? They received their land back again, indeed ; but they received it, loaded with all the oppressive burdens of the feudal servitude— I Kefl. on Fr. Rev. 47. 298 LECTURES ON LAW. cruel, indeed ; so far as the epithet cruel can be applied to matters merely of property. But all the other rights of men are in question here. For liberty is frequently used to denote all the absolute rights of men. " The absolute rights of every English- man," says Sir William Blackstone, " are, in a political and extensive sense, usually called their liberties." ^ And must we surrender to government the whole of those absolute rights ? But we are to surrender them only — in trust : — another brat of dishonest parentage is now attempted to be imposed upon us : but for what purpose ? Has government provided for us a superintending court of equity to compel a faithful performance of the trust ? If it had ; why should we part with the legal title to our rights ? After all ; what is the mighty boon, which is to allure us into this surrender ? We are to surrender all that we. may secure " some : " and this " some," both as to its quantity and its certainty, is to depend on the pleasure of that power, to which the surrender is made. Is this a bargain to be proposed to those, who are both intelligent and free ? No. Freemen, who know and love their rights, will not exchange their armor of pure and massy gold, for one of a baser and lighter metal, however finely it may be blazoned with tinsel : but they will not refuse to make an exchange upon terms, which are honest and honorable — terms, which may be advantageous to all, and injurious to none. The opinion has been very general, that, in order to obtain the blessings of a good government, a sacrifice must be made of a part of our natural liberty. I am much in- clined to believe, that, upon examination, this opinion will prove to be fallacious. It will, I think, be found, that wise and good government — I speak, at present, of no other 1 1 Bl. Com. 127. OF THE NATI7EAL EIGHTS OP rNDIVIDTJALS. 299 — instead of contracting, enlarges as well as secures the exercise of the natural liberty of man : and what I say of his natural liberty, I mean to extend, and wish to be under- stood, through all this argument, as extended, to all his other natural rights. This investigation will open to our prospect, from a new and striking point of view, the very close and interesting connection, which subsists between the law of nature and municipal law. This investigation, therefore, will richly repay us for all the pains we may employ, and all the attention we may bestow, in making it. "The law," says Sir William Blackstone, " which restrains a man from doing mischief to his fellow citi- zens, though it diminishes the natural, increases the civil liberty of mankind." ^ Is it a part of natural liberty to do mischief to any one ? In a former part of these lectures, I had occasion to de- scribe what natural liberty is : let us recur to the descrip- tioh, which was then given. ^ " Nature has implanted in man the desire of his own happiness ; she has inspired him with many tender affections towards others, especially in the near relations of life ; she has endowed him with intel- lectual and with active powers ; she has furnished him with a natural impulse to exercise his powers for his own hap- piness, and the happiness of those for whom he entertains such tender affections. If all this be true, the undeniable consequence is, that he has a right to exert those powers for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct ; provided he does no injury to others ; and provided some public interests do not demand his labors. This right is natural liberty." If this description of natural liberty is a just one, it will teach us, that selfishness and injury are as little counten- 1 1 Bl. Com. 125, 126. 2 Ante, vol. 1, p. 276. ^00 LECTURES ON LAW. anced by the law of nature as by the law of man. Positive penalties, indeed, may, by human laws, be annexed to both. But these penalties are a restraint only upon injustice and overweening self-love, not upon the exercise of natural liberty. In a state of natural liberty, every one is allowed to act according to his own inclination, provided he transgress not those limits, which are assigned to him by the law of nature : in a state of civil liberty, he is allowed to act according to his inclination, provided he transgress not those limits, which are assigned to him by the municipal law. True it is, that, by the municipal law, some things may be prohibited, which are not prohibited by the law of nature : but equally true it is, that, under a government -which is wise and good, every citizen Avill gain more liberty than he can lose by these prohibitions. He will gain more by the limitation of other men's freedom, than he can lose Ijy the diminution of his own. He will gain more by the €nlarged and undisturbed exercise of his natural liberty in innumerable instances, than he can lose by the restriction of it in a few. Upon the whole, therefore, man's natural liberty, instead of being abridged, may be increased and secured in a govern- ment, which is good and wise. As it is with regard to his natural liberty, so it is with regard to his other natural rights.^ [1 The idea that the individual surrendered his natural liberty upon en- tering society was well suited to the facts as they existed in a monarchy of the eighteenth century, for there then existed a person to whom submission might be made, but where all persons are considered equal there exists no one to whom rights can be smrendered. The notion resulted naturally from the ancient idea of society, wherein the individual man was lost sight of, and contrasts strikingly with the modern conception of society, which dignifies the individual so that individual right and individual obligation are the props of modern society. The state (society) is but an aggregation of individuals. The government is not the state, but is OP THE NATURAL EIGHTS OF INDIVIDUALS. 301 But even if a part was to be given up, does it follow that all must be surrendered? " Man," says Mr. Burke,^ " cannot enjoy the rights of an uncivil and of a civil state together." By an " uncivil " contradistinguished from a *' civil " state, he must here mean a state of nature : by the rights of this uncivil state, he must mean the rights of nature : and is it possible that natural and civil rights can- not be enjoyed together ? Are they really incompatible ? Must our. rights be removed from the stable foundation of nature, and placed on the precarious and fluctuating basis of human institution ? Such seems to be the sentiment of Mr. Burke : and such too seems to have been the sentiment of a much higher authority than Mr. Bui'ke — Sir William Blacks tone. In the Analysis of his Commentaries,^ he mentions " the right of personal security, of personal liberty, and of private property " — not as the natural rights, which, I confess, I should have expected, but — as the " civil liberties " of Englishmen. In his Commentaries, speaking of the same three rights, he admits that they are founded on nature merely an agency created in order to establisli and protect individual liberty. Modern thought rejects the idea of a state of Nature antedating society, but regards man as by nature a member of society ; being such how can he surrender his liberty and be free. Judge' Cooley, in the third of his Editions of Blackstone's Commentaries, very fully and clearly repudiates the notion of the existence of mankind out of society. So far as I have observed Judge Wilson has the honor of first stating and ex- plaining the modern notion of the relations between individual liberty and government. The distinction between the position of Blackstone and other trans- atlantic writers and that assumed by Wilson and the other revolutionary fathers may be concisely put thus ; by the former Civil liberty consists of natural liberty restrained by law — by the latter civil liberty is natural liberty secured by law. Government is by the latter held to be but the means of enforcing the safeguards provided by the social compact, which is called the Constitution. The Constitution does not create society but "is created thereby. It may create or change the government.] > Refl. on Fr. Rev. 47. ' B. 1 c. 1, s. 8. 302 LECTURES ON LAW. and reason ; but adds ^ " their establishment, excellent as it is, is still human." Each of those rights he traces sev- erally and particularly to Magna Charta, which he justly considers as for the most part declaratory of the principal grounds of the fundamental laws of England.^ He says indeed, ^ that they are " either that residuum of natural liberty, which is not required by the laws of society to be sacrificed to public convenience ; or else those civil pri- vileges, which society has engaged to provide, in lieu of the natural liberties so given up by individuals." He makes no explicit declaration which of the two, in his opinion, they are ; but since he traces them to Magna Charta and the fundamental laws of England ; since he calls them " civil liberties ; " and since he says expressly, that their establishment is human ; we have reason to think, that he viewed them as coming under the latter part of his de- scription — as civil privileges, provided by society, in lieu of the natural liberties given up by individuals. Considered in this view, there is no material difference between the doctrine of Sir William Blackstone, and that delivered by Mr. Burke. If this view be a just view of things, the consequence, undeniable and unavoidable, is, that, under civil govern- ment, individuals have " given up " or " surrendered " their rights, to which they were entitled by nature and by nature's law ; and have received, in lieu of them, those " civil privileges, which society has engaged to provide." If this view be a just view of things, then the conse- quence, undeniable and unavoidable, is, that, under civil government, the right of individuals to their private prop- erty, to their personal liberty, to their health, to their reputation, and to their life, flow from a human establish- ment, and can be traced to no higher soiirce. The con- > 1 Bl. Com. 127. - Id. 128. » Id. 129. OF THE NATURAL RIGHTS OF INDIVIDUALS. 303 Tiection between man and his natural rights is intercepted by the institution of civil society. If this view be a just view of things, then, under civil society, man is not only made /or, but made hy the govern- ment : he is nothing but vifhat the society frames : he can claim nothing but what the society provides. His natural state and his natural rights are withdrawn altogether from notice : " It is the civil social man," says Mr. Burke,' " and no other, whom I have in my contemplation." If this view be a just view of things, why should we not subscribe the following articles of a political creed, proposed by Mr. Burke. " We wished, at the period of the revolution, and we now wish to derive all we possess, as an inheritance from ■our forefathers. Upon that body and stock of inheritance, we have taken care not to inoculate any cyon alien to the nature of the original plant. All the reformations we have hitherto made, have proceeded upon the principle of refer- ence to antiquity ; and I hope, nay, I am persuaded, that all those, which possibly may be made hereafter, will be carefully formed upon analogical precedent, authority, and example." " Our oldest reformation is that of Magna Charta. You will see that Sir Edward Coke, that great oracle of our law, and indeed all the great men who follow him, to Blackstone, are industrious to prove the pedigree of onr liberties." Let us observe, by the way, that the only position, re- lating to this subject, for which I find the authority of my Lord Coke quoted,^ is a position, to which every one, who knows the history of the common law, will give his im- mediate and most unreserved assent : the position is — *' that Magna Charta was, for the most part, declaratory of ' Eefl. on Fr. Kev. 47. » 1 Bl Com. 127, 128. 304 LBCTUKES ON LAW. the principal grounds of the fundamental laws of England."" But Mr. Burke proceeds. " They endeavor to prove, that the ancient charter^ the Magna. Charta of King John, was connected with another positive charter from Henry the First ; and that both the one and the other were nothing more than a re- affirmance of the still more ancient standing law of the kingdom. In the matter of fact, for the greater part, these authors appear to be in the right; perhaps not always ; but if the lawyers mistake in some particulars, it proves my position still the more strongly ; because it demonstrates the powerful prepossession towards antiquity,, with which the minds of all our lawyers and legislators, and of all the people whom they wish to influence, have been always filled ; and the stationary policy of this kingdom in considering their most sacred rights and franchises as an inheritance." ^ It is proper to pause here a little. — If, in tracing thfr pedigree of our " most sacred rights," one was permitted to indulge the same train of argument and reflection, which would be just and natural in the investigation of inferior titles, we should be prompted to inquire, how it happens, that " mistakes in some particulars " would prove more strongly the general point to be established. Would mis- takes in some particulars respecting a title to land, or the genealogy of a family, prove more strongly the validity of one, or the antiquity of the other ? But I must do Mr. Burke justice. The reason, which he assigns, why the making of those mistakes proves his position the more strongly, is, because it proves the " powerful prepossession towards antiquity." Of this pre- possession I will controvert neither the existence nor the strength ; but I will ask — does it prove the point in question? — Does it prove the truth and correctness of iRefl. onFr. Rev. 24. OF THE NATTJEAL EIGHTS OF INDIVHJUALS. SOS* even the civil pedigree of the liberties of England? la- predilection an evidence of right ? Is property or any- lliing else, which is in litigation, decided to belong to him, who shows the strongest affection for it? If, in a con- troversy concerning an inferior object, the person, whO' claims it, and who undertakes to substantiate his claim, should own, that, in deducing his chain of title, some mistakes were made ; but should urge even those mistakes as an argument in his behalf, because his perseverance in his suit, notwithstanding those mistakes, demonstrates his powerful attachment for the thing in dispute ; what would a discerning court^what would an unbiassed jury think of his conduct ? I believe they would not think that it paid any extraordinary compliment, either to their im- partiality or to their understanding. I begin now to hesitate, whether we should subscribe the political creed of Mr. Burke. Let us, however, pro- ceed and examine some of its other articles. Some one, it seems, had been so hardy as to allege, that the king of Great Britain owes his crown to " the choice of his people." This doctrine, says Mr. Buike " affirms a most unfounded, dangerous, illegal, and unconstitutional position." "Nothing can be more untrue, than that the crown of this kingdom is so held by his majesty." ^ To disprove the assertion, " that the king of Great Britain owes his crown to the choice of his people," Mr. Burke has recourse to the declaration of rights, which was made at the accession of King William and Queen Mary. " This declaration of right," says he, " is the corner stone of our constitution, as re-enforced, explained, improved,^ and in its fundamental principles for ever settled. It is called an 'act for declaring th6 rights and liberties of the subject, and for settling the succession of the crown.' These rights and this succession are declared in one body, » Kefl. on Fr. Eev. 9. 306 LECTURES ON LAW. and bound indissolubly together." ^ " It is curious," adds he, " with wha,t address the temporary solution of contin- uity in the line of succession " — for it was impossible for Mr. Burke not to admit that from this line a temporary deviation was made — "it is curious with what address this temporary solution is kept from the eye ; whilst all that could be found in this act of necessity, to countenance the idea of an hereditary succession is brought forward, and fostered, and made the most of by the legislature." " The legislature," he proceeds, " had plainly in view the act of recognition of the first of Queen Elizabeth, and that of James the first, both acts strongly declaratory of the inheritable nature of the crown ; and, in many parts, they follow, with a nearly literal, precision, the words and even the form which is found in these old declaratory statutes." ^ " They give the most solemn pledge, taken from the act of Queen Elizabeth, as solemn a pledge as ever was or can be given in favor of an hereditary succession. ' The lords spiritual and temporal, and commons, do, in the name of all the people aforesaid, most humbly and faithfully submit them- selves, their heirs and posterities for ever ; and do faithfully promise, that they will stand to, maintain, and defend their said majesties, and also the limitation of the crown, herein- specified and contained, to the utmost of their power.' " ^ I have mentioned above, that tyranny, at some times, is uniform in her principles : I have done her full justice : she is not so at all times. Of truth, liberty, and virtue, it is the exclusive prerogative to be always consistent. Let us, for a moment, adopt the statement, which Mr. Burke has given us. Upon that statement I ask — if the humble and faithful submission of the parliament, in the name of all the people, was sufficient, in the time of Elizabeth, to bind themselves, their heirs and posterity 1 Refl. on Fr. Rev. 12. ' Id. 13. » Id. 14. OF THE NATURAL RIGHTS OF INDIVIDUALS. 30T forevei', to the line of hereditary succession ; how came it to pass, that, in the time of William and Mary, the parliament, in the name of all the people, was justified iu deviating, even for an instant, from the succession in that hereditary line ? I ask again — if the humble and faithful submission of the parliament, in the name of all the people, was, in tlie sixteenth century, insufficient to bind their heirs and posterity in the seventeenth century ; how comes it to pass that, in the seventeenth century, the humble and faithful submission of the parliament, in the name of all the people, could bind their heirs and posterity in the eighteenth century ? Such a submission was either sufficient or it was not sufficient for that binding purpose : let the disciples of the doctrine, which rests on this dilemma, choose between the alternatives. I have now no hesitation whether we should or should not subscribe the creed of Mr. Burke : that creed, which is contradictory to itself, cannot, in every part, be sound and orthodox. But, to say the truth, I should not have given myself the trouble of delivering, nor you, of hearing these anno- tations upon it ; unless it had derived the suppoi-t, which it claims, from the Commentaries on the laws of England. The principles delivered in those Commentaries are never anatters of indifference : I have already mentioned, ^ " that when they are not proper objects of imitation, they furnish excellent materials of contrast." Government, in my humble opinion, should be formed to secure and to enlarge the exercise of the natural rights •of its members ; and every government, which has not this in view, as its principal object, is not a government of the legitimate kind.^ Those rights result from the natural state of man ; from that situation, in which he would find himself, if no civil 1 Ante, vol. 1, p. 20. p See Ante, p. 300. Note.] 20 308 LECTUKES ON LAW. government was instituted. In such a situation, a man finds himself, in some respects, unrelated to others ; in other respects, peculiarly related to some ; in still other respects, bearing a general relatioli to all. From his un- related state, one class of rights arises : from his peculiar relations, another class of rights arises : from his general relations, a third class of rights arises. To each class of rights, a class of duties is correspondent ; as we had oc- casion to observe and illustrate, when we treated con- cerning the general principles of natural law. In his unrelated state, man has a natural right to his^ property, to his character, to liberty, and to safety. From his peculiar relations, as a husband, as a father, as a son, he is entitled to the enjoyment of peculiar rights, and obliged to the performance of peculiar duties. These will be specified in their due course. From his general re- lations, he is entitled to other rights, simple in their principle, but, in their operation, fruitful and extensive. His duties, in their principle and in their operation, may be characterized in the same manner as his rights. In these general relations, his rights are, to be free from in- jury, and to receive the fulfilment of the engagements, which are made to him ; his duties are, to do no injury, and to fulfil the engagements, which he has made. On these two pillars principally and respectively rest the criminal and the civil codes of the municipal law. These are the pillars of justice. Of municipal law, the rights and the duties of bene- volence are sometimes, though rarely, the objects. When they are so, they will receive the pleasing and the merited attention. You now see the distribution, short, and simple, and plain, which will govern the subsequent part of my system of lectures. From this distribution, short, and simple, and plain as it is, you see the close and very in- OF THE NATURAL EIGHTS OF INDIVIDUALS. 309 teresting connection between natural and municipal law. You see, to use again my Lord Bacon's language, how the streams of civil institutions flow from the fountain of justice. I am first to show, that a man lias a natural right to his property, to his character, to liberty, and to safety .^ P Blackstone classifies rights as the rights of persons and rights of (concerning) things, and again classifies the rights of persons as absolute- and relative. — The relative, he says, are those in relation to each other in society, as magistrate and people, husband and wife, etc. He enumerates among the rights of persons, personal liberty,personal security and private property. Thus he enumerates among the so-called absolute rights the right of property, including it among the rights of persons, i. e. , as one of the absolute rights of persons. He treats, however, the law relating icy ownership under the rights of things. This has occasioned some confu- sion of thought. This treatment is peculiar to Blackstone, but it will be seen that in Book I. he treats merely the abstract right to acquire and possess property, and not the nature and incidents of ownership and transfer of things. See Hammond's Introduction to Sanders Justinian, p. lii. The very nomenclature of Blackstone is in this respect confusing,, and while apparently based upon the treatment of Hale is a very material departure therefrom. Blackstone terms these rights absolute, and makes no distinction be- tween the use of that word in this connection and the use of the same- word in describing the pcwers of Parliament as absolute and uncontrolled by human laws. Hale treats the matter differently. Persons, says- Hale, " are considered in two ways — absolutely and simply in themselves, or under some degree or respect of relation." Blackstone applies the same terms to the rights of persons, using the word absolutely not as- equal to abstractly, as Hale uses it, but in a far different sense. Our law recognizes no such thing as absolute power or absolute rights, but does recognize the distinction between the abstract i-ight to acquire property as one of the civil rights of persons and the right of property as applied to things. So Justice Patterson of the United States Court says, The right of acquiring and possessing property and having it protected is one of the natural inherent inalienable rights of man. Vanhorne's Lessee v. Dorrence, 2 Dall. U. S. Rep. 310. By keeping in view the distinction pointed out the seeming conflict between the expressions of Judge Patterson and the language used by Marshall in arguing the case of Ware v. Hylton, viz. : " Property is the creature of civil society and subject in all respects to the disposition and control of civil institutions; 3 Dall. 211, is avoided. Keeping in mind the. 310 LECTTJBES ON LAW. His natural right to his property, you will permit me, at present, to assume as a principle granted. I assume it for this reason ; because I wish not to anticipate now what will be introduced, with much greater propriety and advantage, when I come to the second great divis- ion of my lectures, in which I am to treat concerning things. To his character, every one has a natural right. A man's character may, I think, be described as the just result of those opinions, which ought to be formed con- cerning his talents, his sentiments, and his conduct. Opinions, upon this as upon every other subject, ouglit to be founded in truth. Justice, as well as truth, requires, concerning characters, accuracy, and impartiality of opin- ion. Under some aspects, character may be considered as a species of property ; but, of all, the nearest, the dearest, and the most interesting. In this light it is viewed by the Poet of nature — The purest treasure mortal times afford Is spotless reputation. Who steals my purse, steals trash. 'Twas mine ; 'tis his ; and has heeu slave to thousands ; But he who filches from me my good name, Takes from me that, which not enriches him, But makes me poor indeed. By the exertion of the same talents and virtues, property and character both are often acquired : by vice and indo- lence, both are often lost or destroyed. The love of reputation and the fear of dishonor are, by the all-gracious Author of our existence, implanted in our breasts, for purposes the most beneficent and wise. Let not these principles be deemed the growth of dis- nature of property will still further elucidate the subject. Property is the right in or to a thing, and not the thing itself.] OF THE NATUEAL PaGHTS OF INDIVIDUALS. 311 positions only which are weak or vain ; they flourish most luxuriantly in minds, the strongest and, let me add, the most humble. Of the happiness of heaven, a part of the unerring description is — that it is " full of glory." Well may character, then, be considered as one of the natural rights of man : well may it be classed among those rights, the enjoyment of which it i^ the design of good government and laws to secure and enlarge : well does it deserve their encouragement and protection ; for, in its turn, it assists their operations, and supplies their defi- ciencies. I remarked a little while ago, that the rights and the duties of benevolence are but rarely, though they are at some times, the objects of municipal law. The remark may be extended to rights and duties of many other kinds. To many virtues, legal rewards are not, nor can they be, assigned : with legal impunity, many vices are, and must be, suffered to escape. But before a court of honor those qualities and sentiments and actions are amenable, whieli despise the subtlest process of the tribunals of law, and elude the keenest vigilance of the ministers of justice. This court, powerful in its sentences as well as extensive in its jurisdiction, decrees to virtue, and to the virtuous exertion of talents, a crown of fame, ]3ure and splendid : vice, and idleness, less odious only than vice, it dooms to wear the badges of infamy, dirty and discolored. This court therefore, in a government of which virtue is the principle and vice is the bane, ought to receive, from all its institutions, the just degree of favor and regard. Honor's a sacred tie — The noble mind's distinguishing perfection, That aids and strengthens virtue, where it meets her. The Poet adds — And imitates her actions, whereshe is not. 312 LECTUKES ON LAW. The moral descriptions of Mr. Addison are seldom in- accurate. On this occasion, however, I must declare that I think him liable to the charge of inaccuracy. The counterfeit of virtue should not be dignified with the ap- pellation of honor. It is the sentiment of some writers, highly distinguished too by their liberal and manly principles, that honor is peculiar to governments which are monarchical. " In ex- treme political liberty," says the Marquis of Beccaria, " and in absolute despotism, all ideas of honor disappear, or are confounded with others. In the first case, reputa- tion becomes useless from the despotism of the laws ; and, in the second, the despotism of one man, annulling all civil existence, reduces the rest to a precarious temporary personality. Honor, then, is one of the fundamental prin- ciples of those monarchies, which are a limited despotism ; and in these, like revolutions in despotic states, it is a momentary return to a state of nature and original equality." ^ How prevalent even among enlightened writers, is the mistaken opinion that government is subversive of equal- ity and nature ! Is it necessarily so ? By no means. When I speak thus, I speak confidently, because I speak from principle fortified by fact. Let the constitution of the United States — ^let that of Pennsylvania be examined from the beginning to the end. No right is conferred, no •obligation is laid on any, which is not laid or conferred on ■every citizen of the commonwealth or Union — I think I may defy the world to produce a single exception to the truth of this remark. Now, as I showed at large in a former part of my lectures,^ the original equality of man- Icind consists in an equality of their duties and rights. That honor is the principal of monarchical governments, is the well-known doctrine of the celebrated Montesquieu. ^Bec. c. 9. - Ante, vol. 1, pp. 273-275. OP THE NATURAL EIGHTS OF INDIVIDUALS. 313 But let us examine the nature and qualities of that honor which he describes. It is that honor which can subsist without honesty ; for he says expressly,^ that, in well pol- icied monarchies, there are verj-- few honest men. It is that honor which forbids not adulation, nor cunning, nor craft. It is that honor which judges of actions not as they are good, but as they are showy ; not as they are just, but as they are grand ; not as they are reasonable, but as they are extraordinary. It is in one word, that honor, which fashions the virtues just as it pleases, and extends or lim- its our duties by its own whimsical taste. To this honor, indeed, truth in conversation is a necessary point : but is this for the sake of truth? By no means. For the possession of this honor — vicious in its practice, and, even when right in its practice, vicious in its principle — a republican government will not, I presume, contend. But to that honor, whose connection with virtue is indis- soluble, a republican government produces the most un- questionable title. The principle of virtue is allowed to be hers : if she possesses virtue, she also possesses honor. I admire the fine moral and political instruction, as well as the elegant architectural taste, exhibited by the justly framed structure, in which the temple of honor was acces- sible only through the temple of virtue. Viewed in this light, the honor of character is a prop^ erty, which is, indeed precious. But let it be remem- bered, that, in this view, it is a property, which must be purchased. To claim that reputation which we do not deserve, is as absurd, though it is not as barefaced, as to <;laim that property which is not ours. The only differ- ence is, that, in the former case, we claim generally that which belongs to another, while, in the latter case, we claim that which only does not belong to ourselves. In both cases, the claim is equally unfounded. 1 Sp. L. b. 3, c. 6. 314 LECTURES ON LAW. To bestow on another that reputation which he does not deserve, is equally profuse, and, in many instances, is more unjust than to bestow on him that property, to which he is not, on the principles either of justice, or charity, or ben- evolence, entitled. As it is equally profuse, it is more to be guarded against. In the latter ease, we bestow what is our own, and, therefore, are inclined to be cautious : iri the former case, we are apt to be inconsiderate, because what we. bestow is not ours. Indiscriminate praise is not so odious, but it is as useless and it is as heedless as indis- criminate censure. In one important particular they pre- cisely coincide. They have an equal tendency to destroy and to render inefBcacious the great distinction between right and wrong, approbation and disapprobation, virtue and vice. If it is unwarrantable to bestow reputation where it is not due ; what epithet shall we assign to that conduct, which plucks the wreath of honor from those temples, around which it has been meritoriously placed ? Robbery itself flows not from a fountain so rankly poisoned as thatr which throws out the waters of malicious defamation. The subject of reputation will again come under your view, when I treat concerning prosecutions for libels and actions of slander : both of which suppose an unjustifiable aggression of character. What I have now said will suffice to point to the general principles, on which those actions and prosecutions should be defended, supported, and determined. Property must often — reputation must always be pur- chased : liberty and life are the gratuitous gifts of heaven. That man is naturally free, was evinced in a former lecture : ^ I will not reiterate what has been advanced. I shall certainly be excused from adducing any formal 'Vol. 1, p. 275. OF THE NATURAL EIGHTS OF INDIVIDUALS. 315 arguments to evince, that life, and whatever is necessary for the safety of life, are the natural rights of man. Some things are so difiScult ; others are so plain, that they can- not be proved. It will be more to our purpose to show the anxiety, with which some legal systems spare and pre- serve human life ; the levity and the cruelty which others discover in destroying or sporting with it ; and the incon- sistency, witli which, in others, it is, at some times, wantonly sacrificed, and, at other times, religiously guarded. In Sparta, nothing was deemed so precious as the life of a citizen. And yet in Sparta, if an infant, newly born, appeared, to those who were appointed to examine him, ill formed or unhealthy, he was, without any further cere- mony, thrown into a gulf near Mount Taygetus.^ Fortu- nate it was for Mr. Pope — fortunate it was for England, which boasts Mr. Pope — that he was not born in the neigh- borhood of Mount Taygetus. At Athens,^ the parent was empowered, when a child was born, to pronounce on its life or its death. At his feet it was laid : if he took it in his arms, this was received as the gracious signal for its preservation : if he deigned not a look of compassion on the fruit of his loins, it was re- moved and exposed. Over almost all the rest of Greece,^ this barbarity was permitted or authorized. In China, the practice of exposing new born children is said to have prevailed immemorially, and to prevail still. As the institutions of that empire are never changed, its situation is never improved. Tacitus records it to the honor of the Germans, that, among them, to kill infants newly born was deemed a most flagitious crime. Over them, adds he, good manners have more power, than good laws have over other nations. This shows, that, in his time, the restraints of law began to be 1 4 Anac. 161, 162. 2 3 Anac. 4. » Id. ibid. 316 LECTURES ON LAW. imposed on this unnatural practice ; but that its inveteracy had rendered them still inefficacious. Under the Roman commonwealth, no citizen of Rome was liable to suffer a capital punishment by the sentence of the law. But at Rome, the son held his life by the tenvire of his father's pleasure. In the forum, the senate, or the camp, the adult son of a Roman citizen enjoyed the public and private rights of a person : in his father's house, he was a mere thing ;^ confounded, by the laws, with the cattle, whom the capricious master might alienate or destroy, without being responsible to any tribunal on earth. The gentle Hindoo is laudably averse to the shedding of blood ; but he carries his worn out friend or benefactor to perish on the banks of the Ganges. With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb.^ By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger. The grades of solicitude, discovered, by the law, on the subject of life, are marked, in the clearest manner, by the long and regular series of the different degrees of aggression, which it enumerates arid describes — threatening, assault, battery, wounding, mayhem, homicide. How those differ- ent degrees may be justified, excused, alleviated, aggra- vated, redressed, or punished, will appear both in the criminal and in the civil code of our municipal law. Thus much concerning the natural rights of man in what has been termed his unrelated state. I come now to specify and to consider those peculiar relations, by virtue of which 1 8 Gibbon, 52. » 1 Bl. Com. 129. OP THE NATURAL EIGHTS OF INDIVIDUALS. 31T a man is entitled to the enjoyment of peculiar rights, and obliged to the performance of peculiar duties. I begin with marriage, which forms the near relation between husband and wife. Whether we consult the soundest deductions of reason, or resort to the best information conveyed to us by history, or listen to the undoubted intelligence communicated in holy writ, we shall find, that to the institution of marriage the true origin of society must be traced.^ By that insti- [' .Judge Story in'his Conflict of Laws, § 109, says: " There are some re- marks on this subject, made by a distinguished Scottish judge, so striking that they deserve to be quoted at large. Marriage being entirely a per- sonal, consensual contract, it may be thought that the lex loci must be lesorted to in expounding every question that arises relative to it. But it will be observed that marriage is a contract sui generis, and differing in some respects from all other contracts ; so that the rules of law which are applicable in expounding and enforcing other contracts may not ap- ply \o tills. Tlie contract of marriage is the most important of all human transactions. It is the very basis of the whole fabric of civilized society. The status of marriage is juris gentium, and the foundation of it, like that of all other contracts, rests on the consent of parties. But it differs from other contracts in this, that the rights, obligations, or duties arising from it are not left entirely to be regulated by the agreements of parties, but are, to a certain extent, matters of municipal regulation, over which the parties have no control by any declaration of their will. It confers the status of legitimacy on cliildren horn in wedlock, with all the conse- quential rights, duties, and privileges thence arising; it gives rise to the relations of consanguinity and afifinity; in short, it pervades the whole system of civil society. Unlike other contracts, it cannot, in general, amongst civilized nations, be dissolved by mutual consent, and it sub- sists in full force, even although one of the parties should be forever ren- dered incapable, as in the case of incurable insanity, or the like, from performing his part of the mutual contract." The Supreme Court has reiterated the language in Randall i\ Kreiger, 23 Wall. 147-190, U. S. Supreme Com-t Reports. The influence of religion upon tlie institutions and laws of a country .are powerfully illustrated by the subject of Marriage. The rule is that a marriage is a contract, and is recognized as valid every wliere if valid when made, but the exception is made against poly- gamy, and tlie ground therefor. Christianity is understood to prohibit jx>iygamy * * * and therefore no Christian country would recognize poly- 318 LECTURES ON LAW. tution tlie felicity of Paradise was consummated ; and since the unhappy expulsion from thence, to that institution, more than to any other, have mankind been indebted for the share of peace and harmony which has been distributed among them. " Prima societas in ipso conjugio est," says Cicero in his book of offices ; ^ a work which does honor to the human understanding and the human heart. The most ancient traditions of every country ascribe to its first legislators and founders, the regulations concern- ing the union between the sexes. The honor of instituting^ marriage among the Chinese, is assigned to their first sovereign,^ Fo-hi. In order to render this great foundation of society respectable, he adjusted, as we are told,^ the ceremonies, with which the contracts of marriage were ac- companied. Among the Egyptians, the law of marriage is said to liave been established by Menes,* whose name is transmitted to us as that of their first king. The history of Abraham * affords a striking instance of the profound respect, which in his day was paid, in Egypt, to the conjugal union. Cecrops has been already mentioned as the first great legislator of the Athenians, and as borrowing his insti- tutions from those of the Egyptians. Accordingly we are informed, that he established, at Athens, the laws and ceremonies of marriage, in the same manner as they were observed and practised in Egypt. Polygamy was not permitted.^ These regulations are described as the sources of virtues and enjoyments. They evinced the advantages of decencj', the attractions of modest}-, the gamy." Story Conf. Law, § 114. This doctrine is assented to in England, the deduction is simple civilized society is based upon marriage, marriage must conform to the Christian religion; the intimate association be- tween public opinion, religion and law is shown, the institution of slavery yielded to the same influence.] 1 L. 1, c. n. - 1 Gog. Or. L. 22. a 3 Gog. Or. L. :;13. * Gog. Or. L. 22. ^ Gen. xii. 19. « 2 Gog. Or. L. 10. OF THE NATURAL RIGHTkS OF INDIVIDUALS. 819 happiness of loving, and the necessity of constancy in love.^ The founder of Rome made, concerning marriages, a law, which, on many accounts, will deserve our particular attention. It was expressed in these words : " Let every wife, who by the holy laws of marriage falls into the power of a husband, enter with him into a community of goods and sacrifices." ^ As marriage has been instituted by the first, it has always been encouraged by the wisest legislators. By the law of Moses,* a man, during one year after his marriage, was exempted from public burdens, and from •going to war. A regulation nearlj^ similar, as we are told, was established by the Incas of Peru.* The jus- trium liberorwn, introduced by the prudent policy of Augustus, was a permanent inducement to matrimony at Rome.^ Legislators have, with great propriety, carried their views still farther ; they have provided, as far as .muni- cipal laws can provide, against the violation of rights, indispensably essential to the purity and harmony of the matrimonial union. Treachery, upon any occElsion, is sufficient to stain a page in the annals of life ; but perfidy against the solemn engagements of marriage obliterates the impression of happiness from every subsequent part -of the conjugal history. Upon this subject, however, so interesting to the finest sentiments and emotions of the heart, everything, that might be wished, cannot, we fear, be expected from the operation of human laws. Much must be left to the influence of that legitimate honor, which we have described as the inseparable friend and companion of virtue. From the bastard honor, which we likewise described, it would be ridi- 1 1 Anac. 7. = j jjoi. i>, H. 32. » Deuter. xxiv. 5. 4 1 Gog. Or. L. 23. 6 Mont. Sp. L. b. 23, c. 21. 320 LECTURES ON LAW. culous, in this case, to hope for any assistance. la this case, as in many others, that honor glories in it* shame. Concerning the ancient Germans, Tacitus, in his short but masterly account of their manners,^ informs us that among them the laws of marriage were rigidly observed ; and that no part of their conduct was more exemplary. We have seen the first institution of marriage among the Athenians and the Romans : a concise view of its history will be instructive and interesting. In the heroic ages of Greece, we are told,^ the rights of beauty and feminine weakness were highly respected and tenderly observed. The simplicity of those ages was equally remote from the cruel tyranny of savages, which condemns the fair sex to servitude, and the sordid selfish- ness of luxury, which considers them solely as instrumentt* of pleasure. Hence those affecting scenes so exquisitely described by Homer, which, in the interviews of Hector and Andromache, exhibit the most striking image of nuptial felicity and love. But this beautiful picture of ancient manners was soon miserably defaced ; and, in the degenerate periods of Greece, the fair sex were as much neglected and despised, as they had been loved and ad- mired in the heroic ages. In those degraded times, of which I am now obliged to speak, no pains were employed to render the Grecian females agreeable members of society, in any one part of their lives. Education was either entirely withheld from them ; or it was directed to such objects as were fitted to contract and debase, instead of elevating and enlarging the mind. When they were grown up, they were thrown away in marriage, without being consulted in the choice ;. and by entering into this new state, they found the severe ^ C. 18. 2 1 Gill. 52, 56. OF THE NATTTKAL EIGHTS OF INDIVIDUALS. 321 guardianship of a father succeeded by the absolute do- minion of a husband. At this period, even the laws of Athens countenanced this unworthy tenor of conduct : to secure the fortune of the husband was deemed an object of greater importance, than to protect the person and honor of the wife from the outrage so peculiarly dreaded by female virtue.^ Let us now turn our attention to Rome. You recollect, that, by a law of Romulus, " the wife fell into the power of the husband." The law, which, on the whole, was very susceptible of a construction mild and generous, re- ceived from this part of it an interpretation most un- warrantable and severe. By this interpretation, colored with the unnatural fiction, that, on a solemn marriage, the wife was adopted by the husband, he acquired over her all the tremendous plenitude of Roman paternal power. This extreme, as is usual, soon produced its opposite ; and female servitude was exchanged for female licentiousness. The solemnities of the ancient nuptials were declined, in order to avoid the odious consequences superinduced upon them by the construction and fiction of law ; and the parties, without losing, on either side, their independence or their name, subscribed definite and stipulated articles of a marriage contract. Their cohabitation, and the appear-, ances of a common interest which they exhibited, were received, without investigation, as sufiScient evidence of a regular and solemn marriage. Hence that detestable train of conjugal vice, infidelity, rage, rancor, and revenge, with which so many volumes of the Roman story are crowded and disgraced. By the precepts of Christianity, and the practice of the Christians, the dignity of marriage was, however, restored. In the eye of the common law, marriage appears in no ^ Gill. Lys. and Isoc. Int. c. 322 LECTURES ON LAW. other light than that of a civil contract : ^ and to this contract the agreement of the parties, the essence of every rational contract, is indispensably required. If, there- fore, either of the parties is incapable of agreeing, is unwilling to agree, or has not, in fact, as well as in ability and will, concluded the agreement ; the marriage cannot be established by the principles of the common law. Disability to contract marriage may arise from imma- ture age. A man, as we have seen before,* may consent to marriage at fourteen ; a woman at twelve years of age. If, before those respective ages, a marriage take place, either party may, at the age of consent, but not before or after that age, disagree, declare the marriage void, and [} This language is repeated in Story's treatise upon the Conflict of Law, § 108. Tlie relation of the sexes which is called matrimony and which results from the act of marriage is not fully described by calling it a contract. It has attributes not possessed by the ordinary contract and it does not present all the incidents thereof. Its nature as a sacrament, while it enters very largely into the nature of the relation from the stand- point of society and religion, is not recognized and given any weight in tlie eye of the law. It is in this sense that the writers of the last century say marriage, in the eye of the common law, is a mere contract. Mamage is a legal state, relation, or status resulting from the conduct of the parties and accompanied by the matrimonial intention. When certain ceremonies take place with the consent of both parties the legal relation follows. Where no ceremony is observed it is neces- sary to ascertain the intent which accompanies the acts of the parties ; this may be done by considering their declaration and their conduct. The mere proof of coliabitation and the declaration of the parties that they were married might or might not engender belief sufficient to con- stitute proof. The test in such cases is whether the conduct of the parties w as in- tended as meretricious, or indicated that constancy and devotion to each other was intended. Cases have been held to be cases of narriage where the relation began while one of the parties was already married and this was known to both, but the parties continued to live lives of constancy and devotion after the disability was removed, although no new promise, inten- tion, or ceremony was proved, in such a case, the Lords said : " Marriage is a status that, arises from the conduct of cohabiting parties." Law Reports, 1 H. L. Cas. 182.] - Ante p. 24. OF THE KATTTRAL EIGHTS OF IKDIVTDTTALS. 323 marry again : but if, at the age of consent, they agree to continue together, there is no occasion for another mar- riage between them ; that which has taken place being deemed a marriage, though only an inchoate and imper- fect one. If, at the time of the inchoate marriage, one of the parties is, and the other is not of the age of consent, when the last arrives at that age, the first as well as the last may disagree ; for in a contract of marriage, both or neither must be bound.^ Disability to contract marriage may arise from the want of reason. Consent, as has been already observed, is es- sential to this, as to every other contract ; but those who enjoy not a competent share of reason, are incapable of giving consent.* By a law of Pennsylvania, certain degrees of consan- guinity and affinity, specified in a table subjoined to the law, are disabilities to contract matrimony : and all mar- riages within those degrees are declared to be void. I re- fer you to the table specifying the degrees.^ One marriage undissolved, forms a disability to contract another. In such a case the second marriage is void as well as criminal.* " Consensus non concubitus facit matrimonium," is a maxim of our law ; marriage, therefore, must be the effect of willingness as well as of capacity to contract it.° When to the ability and will to contract, an actual con- tract is added ; then the marriage is complete. Before the time of Pope Innocent the Third, there was no solemnization of marriage in the church ; but the man came to the house where the woman inhabited, and led her home to his own house ; which was all the ceremony then used.® 1 2 Ins. 79, a, b. = i bi. Com. 438. ' 1 Laws Penn. 46^ * 1 Bl. Com. 436. » 1 Ins, 33. ' 8 Bac. 575. 21 324 LECTTTEES ON LAW. By an act of the legislature of Pennsylvania, all mar- riages not forbidden by the law of God, shall be encour- aged.^ In the construction of legacies, it is a general rule that all conditions are unlawful, which would operate against the liberty of marriage.^ It will be proper, in the next place, to consider the con- sequences of marriage. The most important consequence of marriage is, that the husband and the wife become, in law, only one person: the legal existence of the wife is consolidated into that of the husband. Upon this principle of union, almost all the other legal consequences of marriage depend. This principle, sublime and refined, deserves to be viewed and examined on every side. Among human institutions, it seems to be peculiar to the common law. Peculiar as it is, however, among human institutions, it seems not un- congenial to the spirit of a declaration from a source higher than human — " They twain shall be one flesh."' Even of the common law, this was not always a prin- ciple. We are told by the learned Selden, that the Saxon wives were never one with their husbands ; nor were they, as wives, under the view of the frank-pledge : a Saxon wife was obliged to give pledge by their friends, that she would do no wrong. She passed as an appurtenant to her husband, rather than one in unity with him : and her es- tate was rather appurtenant to her than to him : for if she failed in her good carriage to her husband, she was to make him amends out of her own estate ; and if that was insuf3ficient, then her pledges were to make satisfaction for her.^ This interposition of friends between husband and wife, in matters respecting either their conduct or their claims, seems alien to the delicacy and nearness of the matrimonial connection. On very pressing emergen- cies, indeed, it is necessary that the law should interfere, > 1 Laws Penn. 36. » Swin. 266. » Bac. on Gov. 65. OF THE NATURAL EIGHTS OP INDIVIDUALS, 325 and on such emergencies we shall see that it does inter- fere; but the general presumption and the universal wish ought to be, that, between husband and wife, there subsist or may subsist no difference of will or of interest. Such accordingly, during many centuries past, has been the lan- guage of the law. Bracton, in the reign of Henry the Third, informs us, that " husband and wife are as one per- son, because thej' are one flesh and blood." ^ Littleton, whose sayings are of such high authority, tells us repeat- edly, " that the husband and the wife are but one person in the law." ^ In pursuance of this principle, a crime, except treason and murder,^ committed by the husband and wife, shall be charged against him solely ; because the law will suppose that she acted under his influence or coercion. In pur- suance of the same principle, a husband and wife cannot be witnesses for or against one another : if they were per- mitted to give testimony for one another, one maxim of the law would be violated — No one can be a witness in his own cause : if they were permitted to give testimony against one another, another maxim of the law would be violated — No one is obliged to accuse himself. ■ But, as has before been intimated, whenever urgent emergencies arise ; whenever any outrage is threatened or committed against the peace or safety of society, as well as against the refined rules of the conjugal union ; the law will interpose its authority, and, though it will not order, because it cannot enforce its orders for observing the lat- ter, it will order, because it can enforce its orders for preserving the former. The refined delicacy of the maxim — that husband and wife are considered as one person by our law — appears now in a beautiful and striking point of view. The rights, the enjoyments, the obligations, and the felicities of the » 1 Ins. 187, b. 2 S. 168, 291. » 1 Bl. Com. 444. 326 • LECTURES ON LAW. matrimonial state are so far removed from her protection or redress, that she will not appear as an arbitress ; but, like a candid and benevolent neighbor, will presume, for she wishes, all to be well. To the other rights and to the other duties of a mar- riage life, we must extend the observations wliich we have alreadj'^ applied to one of them. Reliance must be placed on that honor, which is the inseparable friend and companion of virtue. I have spoken concerning those consequences of mar- riage, which relate to the persons of the husband and wife : the consequences which relate to their property, will be fully considered under the second great division of my system : you observe, that I carefully avoid the blending of the two divisions. By that event which closes the scene of all sublunary enjoyments, marriage is dissolved : it may be dissolved sooner — by divorce. To the law of England, two kinds of divorce are known — a divorce from the bed and the table— ^and a divorce from the chains — the metaphor is proper on this occasion — a divorce from the chains of matrimony. The propriety of the first kind, I am, I confess, at a loss to explain : that of the second kind is frequently obvious. When, as we have seen, the impression of happiness must be obliterated from every succeeding part of the conjugal history, why should any more blackened pages be added to the inauspi- cious volume ? But of causes which are slight or trivial, a divorce should, by no means, be permitted to be the effect. -When divorces can be summoned to the aid of levity, of vanity, or of avarice, a state of marriage becomes frequently a state of war or stratagem ; still more fre- quently, a state of premeditated and active preparation for auccessful stratagems and war. Such was the case in &n- cient Rome. " Passion, interest or caprice," says the His- OF THE NATURAL EIGHTS OF INDIVIDUALS. 327 torian of her falling state, " suggested daily motives for the dissolution of marriage ; a word, a sign, a message, the mandate of a freeman declared the separation ; the most tender of human connections was degraded to a tran- sient society of profit or pleasure." ^ Sic flunt octo mariti Quinque per autumnos. Juv. Sat, TI. 20. Non consulum numero, sed maritorum anuos buos computant. Sen. de. Ben^. III. 16. Both these remarks are levelled particularly at the female sex : but who drew the picture, in which the lion was in- juriously represented ? Cicero, after having said, as we have seen, " prima so- cietas in ipso conjugio est," adds, " proxima in liberis." I consider, in the next place, the relation of parent and child. The transition is, indeed, a natural one. The senti- ments of parental affection are generally warm and tender, in proportion to those of conjugal love. The sentiments of filial duty are generally sincere and respectful, in pro- portion to those of parental affection. It is the duty of parents to maintain their children de- cently, and according to their circumstances ; to protect them according to the dictates of prudence ; and to edu- cate them according to the suggestions of a judicious and zealous regard for their usefulness, their respectability, and their happiness. The formidable power of a Roman father is unknown to the common law. But it vests in the parent such author- ity as is conducive to the advantage of the child. When it is necessary — and a real necessity exists much more rarely than is often imagined — a moderate chastening may 1 8 Gibbon, 62. 328 LECTTTRES ON LAW. be administered ; but every milder means should be pre- viously used. Part of his authority he may delegate to the person intrusted with his child's education : ^ that per- son acts then in the place, and he ought to act with the disposition, of a parent. The legal power of a father ceases, when the child attains the age of twenty-one years. But, — for we now turn to the duties of children — as obedience and subjection to theii; parents are due from them during their minority ; honor and reverence are nat- urally and justly expected from them ever afterwards. If it become necessary, the child should, according to his circumstances, maintain the parent : 'tis but a natural and grateful return for the maintenance, which the parent has given to the child. The decent reserve which the common law has shown, vidth regard to the relation between parent and child, should be admired, and may be accounted for on the same principles, which were observed under the relation of hus- band and wife. The civil law interposed in the nice feel- ings and tender transactions of both relations, with a rude and indelicate management. In that law, we find an enumeration of fourteen different reasons, for which a father may disinherit his child. Would it not have been much more natural, to have left, as the common law has left, this subject to the decision of that judge, which hold its tribunal in every parent's breast? But, here as on former occasions, I refer the questions of property — and there are very important ones — arising from this relation, to the full discussion, which will be given under the second division of my system. A bastard is one who is born out of lawful marriage. By law, he is considered quasi nullius filius. But surely it is the natural duty of his parents to maintain, to pro- tect, and to educate him. 1 1 Bl. Com. 453. OP THE NATURAL EIGHTS OF INDIVIDUALS. 329 The rules which govern the relation between a father and his child, govern, but in an inferior degree, and for a shorter time, that relation, which is substituted in the place of the other, between a guardian and his ward. On this subject, therefore, it will not be necessary to descend into particulars. I come now to examine the relation between a master and his servants. Slavery, or an absolute and unlimited power, in the mas- ter, over the life and fortune of the slave, is unauthorized by the common law. Indeed, it is repugnant to the prin- ciples of natural law, that such a state should subsist in any social system. The reasons, which we sometimes see assigned for the origin and the continuance of slavery, ap- pear, when examined to the bottom, to be built upon a false foundation. In the enjoyment of their persons and of their property, the common law protects all. With re- gard, however, to any right, which one man may have ac- quired to the personal service of another, the case is very different. This right the common law will support.^ He, to whose service this right is acquired, is only in the same state of subjection, to which every servant and apprentice is obliged, and finds it his interest, to submit. The contract between a master and a servant arises upon the hiring. If a servant is retained generally, with- out expressing any limited time, the law will construe it to be for a year : ^ the reasonable foundation of this rule is, that, through the revolutions of the seasons, equality shall be preserved in the contract ; that the master shall not have it in his power to dismiss the servant when there is little work to be done ; nor the servant have it in his power to depart when there is much. The contract, how- ever, may be made for any term longer or shorter than a 1 1 Bl. Com. 423, 425. 2 1 Ins. 42 b. 330 LECTURES ON LAW. year.i If, during the term of the contract, the servant become sick, tliis is a condition incident to human- ity. In his sickness, the master is bound to take care of him, and provide for him ; nor can a deduction of wages be made for the time, during which he is detained from service.^ If a servant marry, the marriage dissolves not the con- tract to sei-ve : * if, without any reasonable cause, he de- part from his service, within the term, for which he is retained ; he can recover no wages.* A contract for ser- vice is, on both sides, personal, and is discharged by the death of either of the parties.* This is the rule at the common law. A master, we are told, may justify an assault in defence of his servant ; and a servant, in defence of his master ; the former, because he has an interest in the service of the latter ; the latter, because the defence of the former is con- sidered as part of the consideration, for which wages are stipulated and received." The law is unquestionably so as is here stated : the reasons assigned for it, I am inclined to believe, are founded on principles much too narrow. The defence of one's own person is a part of the law of self- preservation. The defence of the person of another is, I think, a part of the law of humanity. This point, how- ever, which is of a very general importance to the peace and security of society, will merit an investigation in an- other place. The common law, retaining the refined delicacy which we have observed oftener than once, will not, without strong necessity, inspect or interpose in the interior government of a family. That sufficient authority, how- ever, may exist to preserve order iii the domestic depart- ment — a department of mighty moment to human happi- 1 1 Bl. Com. 425. = 2 Burr. 948. » P. N. B. 168. * Wood, Ins. 51. 6 str. u&J, Wood, Ins. 51. « 1 Bl. Com. 429. OF THE NATURAL RIGHTS OP INDIVIDUALS. 331 ness — the law invests the master with a power to correct, but moderately, his servant or apprentice, for negligence or for other misbehavior. We have seen that " sine im- perio, nulla domus stare potest." ^ Besides ; in the regu- lation which the law has drawn concerning an atrocious outrage, in which she found it necessary to interpose, she has with a pencil exquisitely fine, but whose strokes can be traced by a discerning eye, marked a line of general di- rection for the relative rights and duties of a master and servant. From the latter to the former, she expressly re- quires a species, though an inferior species, of allegiance : from the former to the latter, she, by a necessary conse- quence, strongly inculcates a species, though an inferior species, of protection. These remarks will receive illus- tration, when the crime of petty treason shall come under our view. Apprentices are a species of servants. They are usually bound for a term of years, to serve and to be instructed by their masters in their profession or trade. Persons under the age of twenty-one years cannot, by the common law, bind themselves apprentices, in such a manner as to become liable to an action for departing from their service, or for other breaches of their indentures. For this reason, it is necessary that the parent, guardian, or some friend of the apprentice be bound for the faithful discharge of his duty.^ But it is not eveiy minor, who has such connections, willing to be bound for him. By the custom of London, an infant, unmarried and above the age of fourteen years, may bind himself appren- tice to a freeman of London ; and the covenants in the in- denture of apprenticeship shall be as valid, as if the ap- prentice had been of full age.^ The spirit of this custom has been adopted and enlarged by the legislature of Penn- sylvania. A minor, bound an apprentice with the assent > Cic. de leg. 1, 3. » 3 Bac. 547. » Id. 347. 332 liECTTTBES ON LAW. of the parent, the guardian, or the next friend, or with the assent of the overseers of the poor, and approbation of any two justices, is bound as fully as if of age at the time of making the indentures. But an apprenticeship under this very excellent law must expire, in the case of a male, at twenty-one, in the case of a female, at eighteen years of To qualify one for the skilful and successful exercise of a trade or profession, an apprenticeship is certainly use- ful ; but, by the common law, it is not necessary. It was resolved, as we are informed in one of the reports of my Lord Coke, that, at the common law, no man can be pro- hibited from exercising his industry in any lawful occu- pation ; for the law hates idleness, the mother of all evil, and especially in young men, who, in their youth, which is their seed time, ought to learn lawful trades and sciences, which are profitable to the commonwealth, and of which they themselves may reap the harvest in their future years. Besides ; the common law abhors all monopolies, which forbid any from working in any lawful trade. If he who undertakes to work is unskilful, his ignorance is his sufficient punishment ; for " quilibet quserit in qualibet arte peritos ; " and if, in performing his work, he injures his employer, the law has provided an action to recover damages for the injury done.^ To every monopoly, we are told by the same book in another place,^ there are three inseparable incidents against the commonwealth. 1. The price of the commodity is raised. 2. The quality of the commodity is debased. 3. Those who formerly maintained thelnselves and their families by the same pro- fession or trade, are impoverished, and reduced to a state of beggary and idleness. Besides apprentices, and those to whom the name of servant is appropriated in the language of common life, » 1 Laws Penn. 540, s. 1. « 1 Kep. 53 b., 54. » Id. 86 b. OF THE NATURAL EIGHTS OF DTDIVIDITALS. 333 the relation of servant is extended, by the language and by many of the rules of the law, to others in a superior min- isterial capacity — to bailiffs, to stewards, to agents, to factors, to attorneys, and to the masters of vessels con- sidered in their relation to the owners of them.^ Of many acts of the servant, the master is entitled to leceive the advantage : of many others, he is obliged to suffer or to compensate for the injury. In each series of cases — it would be, here, improper to attempt an enumera^ tion of particulars — In each series of cases, the principle is the same. Whatever is done by the servant, in the usual course of his business, is presumed, and fairly presumed, to be done by the command, or the authority, tacit or ex- press, of the master ; whatever is done by the master's command, is considered, and justly considered, as done by the master in person : " Qui facit per alium, facit per se." Thus much concerning the relation between master and servant : and thus much concerning the component parts of that important and respectable, though small and some- times neglected establishment, which is denominated a family. " Id autem est " — says Cicero,^ .in the fine and just passage already cited oftener than once — " id autem est principium urbis, et quasi seminarium reipublicse." It is the principle of the community ; it is that seminary, on which the commonwealth, for its manners as well as for its numbers, must ultimately depend. As its establish- ment is the source, so its happiness is the end, of every ■ institution of government, which is wise and good. In the introduction to my lectures ^ I told my hearers, that " public law and public government were not made for themselves ; " but that " they were made for some- thing better ; " that " I meant society ; " that " I meant particularly domestic society." Perhaps, it was then 1 3 Bac. 644. « De OfE. 1. 1, c. 17. s Vol 1, p. 30. 334 LBCTUEES ON LAW. thought, by some, that all this was introduced merely for the sake of an encomium — but, by the waj'-, an encomium severely just — with which it was accompanied. In the regular course of my system, the sentiment has now under- gone a scrutinizing analysis in the most minute detail. I can appeal to such, if any such, who thought otherwise then — I can appeal to all, who have formed their opinion now, whether the sentiment, in all its parts, and in all its objects too, is not founded in sound politics and genuine philosophy. In digesting a system of English law a little more than a century ago, it would have been necessary to notice and explain another domestic relation — not, indeed, founded in nature — that of lord and villain. Of the feudal city, however, w^e can still recollect the exterior battlements and towers, cumbrous, but disproportioned and insecure, and the interior buildings and halls, spacious, but com- fortless and inconvenient. In ruins it now lies. With sentiments very different from those of regret, we can exclaim over it — -fuit servitusJ I have now done with considering the peculiar relations of man in a state of society, independent of civil govern- ment. But in that state, as he bears peculiar relations to some, so he bears a general relation to all. From that general relation, rights and duties result. His rights are, to receive the fulfilment of the engagements which are made to him, and to be free from injury to his peculiar relations, to his property, to his character, to his liberty, to his person. His duties are, to fulfil the engagements, which he has made; and to do no injury, in the same extensive meaning, in which he would wish and has a right to suffer none. In a former lecture,^ when I delineated at large the principles and the character of the social man, these rights » Fuit lUum. 3 Vol. 1, p. 261, 263. OF THE NATURAL EIGHTS OF INDIVIDUALS. 335 and duties received their illustration, and were shown to be laid deeply in the human frame. To your recollection of what was then said, I beg leave to refer you. These rights and duties are indeed, as has been observed, great pillars on which chiefly rest the criminal and the civil codes of the municipal law. It would surely be prepos- terous to undermine their foundation, with a view to give strength or stability to what they support — to unfix what rests on the immovable basis of nature, and to place it on the tottering institutions of man. I here close my examination into those natural rights, which, in my humble opinion, it is the business of civil government to protect, and not to subvert, and the exercise of which it is the duty of civil government to enlarge, and not to restrain. I go farther ; and now proceed to show, that in peculiar instance?, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature. The defence of one's self, justly called the primary law of nature,-^ is not, nor can it be abrogated by any regulation of municipal law.^ This principle of defence is not con- fined merely to the person ; it extends to the liberty and the property of a man : it is not confined merely to his own person ; it extends to the persons of all those, to whom he bears a peculiar relation — of his wife, of his parent, of ^ Est igitur, judiees, hsec non scripta, sed nata lex ; quam non dedic- imus, accepimus, legimus ; verum ex natura ipsa arripuimus, hausimus, expressimus ; ad quam non docti, sed facti, non instituti, sed imbuti sumus ; ut si vita nostra in aliquas insidias, si in vim, si in tela aut latronum aut Inimicorum incidisset, omnis honesta ratio esset expe- diendie salutis : silent enim leges inter anna ; nee se expectari jubent, cum ei qui expectare velit, ante injusta poena luenda sit, quam justa repetenda. Civ. pro Mil. 2 3 Bl. Com. 4. 336 LECTTJKBS ON LAW. his child, of his master, of his servant : ^ nay, it extends to the person of every one, who is in danger ; ^ perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice. The particular occasions on which the defensive principle may be exercised, and the degrees to which the exercise of it may be carried, will appear in subsequent parts of my lectures : for instead of being disavowed, it is expressly recognized by our municipal institutions. As a man is justified in defending, so he is justified in retaking, his property, or his peculiar relations, when from him they are unjustly taken and detained. When and how this recaption may be made, will also appear in the proper places. For this redress, dictated by nature, is also recognized by municipal law. Under the same description, the right of abating or removing nuisances may, in many instances, be classed. This long investigation concerning natural rights and natural remedies, I • conclude by answering the question, with which I introduced it : man does not exist for the sake of government, but government is instituted for the sake of man. The course of it has naturally led me to con- sider a number of interesting subjects, in a view somewhat different, perhaps, from that, in which we see them con- sidered in some of our law books ; but in a view perfectly consonant to the soundest rules and principles of our law. » Id. 2 1 Haw. 131. PART III. CHAPTER I. OF THE NATUEB OF CRIMES ; Am) THE NECESSITY AND PROPORTION OF PUNISHMENTS. Hitherto, we have considered the rights of men, of citizens, of public officers, and of public bodies : we must now turn our eyes to objects less pleasing — the violations of those rights must be brought under our view. Man is sometimes unjust : sometimes he is even criminal : injuries and crimes must, therefore, find their place in every legal system, calculated for man. One consolatory reflection, however, will greatly support us in our progress through this uninviting part of our journey : we shall be richly compensated when we reach its conclusion. The end of criminal jurisprudence is the prevention of crimes. What is an injury ? — What is a crime ? — What is repara- tion ? — What is punishment ? — These are questions, which ought to be considered in a separate, and also in a con- nected, point of view. At some times, they have been too much blended'. In some instances, the injury and the reparation have been lost in the crime and the punishment. In other instances, the crime and the punishment have, with equal impropriety, been sunk in the reparation and injury. At other times, they have been kept too much apart. The 337 338 LECTtTRES ON LAW. crime has been considered as altogether unconnected with the injury, and the punishment as altogether unconnected with reparation. In other instances, the- reparation only has been regarded, and no attention has been given to the punishment : the injury only has been calculated ; but no computation has been made concerning the crime. An injury is a loss arising to an individual, from the violation or infringement of his right. A reparation is that, which compensates for the loss sustained by an injury. A crime is an injury, so atrocious in its nature, or so dangerous in its example, that, besides the loss which it occasions to the individual who suffers by it, it affects, in its immediate operation or in its consequences, the interest, the peace, the dignity, or the security of the public. Offences and misdemeanors denote inferior crimes. A punishment is the infliction of that evil, superadded to the reparation, which the crime, superadded to the injury, renders necessary, for the purposes of a wise and good administration of government. Concerning an injury and a reparation, and the measures by which each of them ought to be estimated, it will not be necessary to say much ; because, with regard to them, much confusion or mistake has not been introduced into the theory or practice of the law. Concerning crimes and punishments, and concerning the relation between a crime and an injury, and between punish- ment and reparation, the case is widely different indeed. On those subjects, an endless confusion has prevailed, and mistakes innumerable have been committed. On those subjects, therefore, it will be proper to be full ; and it will certainly be attempted — I promise not success in the attempt — to be both accurate and perspicuous. From an inattention or a disregard to the great principle — that government was made for the sake of man, some OF THE NATURE OP CRIMES. 339 -writers have been led to consider crimes, in their origin and nature as well as in their degrees and effects, as dif- ferent from injuries ; and have, consequently, taught, that without any injury to an individual, a crime might be committed against the government. Suppose, says one of the learned commentators on Grotius, that one has done neither wrong nor injury to any individual, yet if he has ■committed something which the law has prohibited, it is a crime, which demands reparation ; because the right of the superior is violated, and because an injury is offered to the dignity of his character.-* How naturally one mistake leads to another I A mistake in legislation produces one in criminal jurisprudence. A law which prohibits what is neither a wrong nor an injury to any one ! What name does it deserve? We have seen^ that a law which is merely harmless without being tyrannical, is itself a harm ; and should be removed. But this doctrine is unsupported by sound legal principle. Every crime includes an injury : every offence is also a private wrong : it affects the public, but it affects the individual likewise. It is true indeed, that, in very gross injuries, we seldom hear of any satisfaction being awarded to the individual, for reasons, the propriety of which will, by and by, be examined. But in offences of an inferior nature, the distinction, and, at the same time, the con- nection between the crime and the injury is most accurately marked and preserved. For a battery, he who commits it may be indicted. Violence against the person of an individual is a disturbance' of the public peace. Qn this disturbance punishment may be inflicted. But in the crime and the punishment, the injury is not sunk, nor is the reparation lost. The party who has suffered the vio- lence may bring his action against the party who has com- 1 2 War. Bib. 15. ^ Ante, -vol. 2, p. '287. 22 840 LECTURES ON LAW. mittecl it : and recover in damages a satisfaction for the' loss which has been sustained. The doctrine, that a crime may be committed against the public, without any injury being done to an individual, is as little consonant to the history, as it is to the principles of criminal jurisprudence. Among the Saxons, as we are informed by Mr. Selden, the most ancient way of proceed- ing, in criminal causes, was by an appeal of the party com- plaining. But afterwards, in cases which concerned damage, injury, or violence done to the body of a man or to his estate, the king — who represented the public — was found to be therein prejudiced, beside the prejudice done imme- diately to the subject : and upon this ground, a way was found out to punish the offender by indictment, beside the satisfaction done to the party wronged. ^ In the very early periods of society, those actions, even the most atrocious, which now are viewed and prosecuted as solely crimes against the state, were considered and re- sented merely as private injuries. In those ages, the con- ceptions of men were too crude to consider an injury done to an individual, as a crime comni'itted against the public ; they viewed it only as a prejudice to the party, or the re- lations of the party, who were irrimediately affected. The privilege of resenting private injuries, in the opinion of a very ingenious writer on the history of the criminal law * was that private right which was the latest of being sur- rendered to society. An improvement in government, so opposite to a strong propensity of human nature, could not have been instantaneous. The progressive steps leading to its completion were slow and almost imperceptible. Coincident, in a very considerable degree, with these sentiments and observations, is a part of the law and prac- tice of England, which at this moment subsists in its full force — I mean the law and practice concerning appeals, 1 Bac. on Gov. 53. ' Kaims, Hist. L. Tr. 19, 20. OF THE NATURE OF CRIMES. 341 particularly appeals of death. An appeal is! the party's private action, seeking satisfaction for the injury done him ; and at the same time, prosecuting for the crown in respect of the offence against the public. On an ajjpeal, the benign prerogative of mercy cannot be exercised ; be- cause, saith the law,^ the plaintiff has an interest in the judgment. This interest, however, may be released ; and the release will be a bar to the proceedings on an appeal. These observations, drawn from so manj'' separate sources combine in the result, that a crime against the public has its foundation in an injury against an individual. We shall see, in the progress of our investigation, that as, in the rude ages of society, the crime was too much over- looked ; so, in times more refined, there has been a disposi- tion, too strong, to overlook the injury. Concerning the standard, by which crimes should be measured in municipal law, there has been much diversity of sentiment among writers, even the wisest and most en- lightened. The law of nature, it is admitted on all hands, measures crimes by the intentions, and not by the event. Should a standard, different from that which has been es- tablished by unerring wisdom, be adopted by uninformed man ? Should not that rule, which is observed by the law divine, be observed, in humble imitation, by laws which are human ? It is said, hot ; and it is said, that this difference must be accounted for by those peculiar at- tributes of the divine nature, which distinguish the dis- pensations of supreme wisdom from the proceedings of human tribunals. A being whose all-seeing eye observes the inmost recesses of the heart, and whose outstretched arm no flight or stratagem can elude or escape — such a being may consider and may punish every crime in exact proportion to the quantity of intrinsic guilt, which is contained in it. But with those to whom the trust and 1 5 Rep. 506. S42 LECTUKES ON LAW. authority of human government is committed, the case is greatly different. Their power and their knowledge are limited by many imperfections : speed may remove, arti- fice may cover the object of punishment froin' their view or their grasp : by them, therefore, crimes must be con- sidered in proportion to the ease and security with which they are committed or concealed, and not instrictproportion to their degrees of inherent criminality. Such, or nearly such, seem to be the sentiments of Mr. Paley.^ The Marquis of Beccaria goes further : he thinks him- self authorized to assert, that crimes are to' be measured only by the injury done to society. They err, therefore, says he, who imagine that a crime is greater or less accord- ing to the intention of the person by whom it is committed ; for this will depend on the actual impression of objects on the senses, and on the previous disposition of the mind ; and both of these will vary in different persons, and even in the same person at different times, according to the succession of ideas, passions, and circumstances. Upon that system, it would be necessary to form, not only a par- ticular code for every individual, but a new penal law for every crime. Men with the best intentions, do the greatest injury, and with the worst, the most essential services to society. That crimes are to be estimated by the injury done to society, adds he, is one of those palp- able truths, which, though evident to the meanest capacity, yet, by a combination of circumstances, are known only to a few thinking men, in every nation and in every age.^ Sir William Blackstone, in one part of his Commentaries, seems to adopt these sentiments. All crimes, says he,' are to be estimated according to the mischiefs which they pro- duce in civil society.^ Mr. Eden, in one part of his book oh thte princijiles of penal law, tells us, agreeably to the same' stentiments, 1 2 Paley, 291, 292. « gac. c. 7, 8. '4 Bl. Com. 41. OF THE NATURE OF CRIMES. 343 that crimes are of temporal creation, and to be estimated in proportion to their perijiicious effects on society : * in another part, he says, that, in some cases, it is necessary to punish the offence without any research into its motive ; and that, in every case, it is impracticable for lawgivers to assume the divine attribute of animadverting upon the fact, only according to the internal malice of the inten- tion : 2 in a third place, however, he expresses himself in the following manner : " It is true, that crimes are to be estimated, in some degree, by the actual mischief done to society ; because the internal malignity of mankind is not within the cognizance of human tribunals. But if this position were received in its fullest latitude, it would prove too much; it would prove that every act of homicide is equally criminal; and that the intention is, in no case, to be considered : " ^ in a fourth place, he considers its flagitiousness as the standard, by which a crime should be measured ; and informs us, that, by its flagitiousness, he means its abstract nature and turpitude, in proportion to which, the criminal should be considered as more or less dangerous to society : * in a fifth place, he intimates the same sentiment, that, " the malignity of the fact is the, true measure of the crime." ^ Is it not shocking to reason, says Mr. Dagge, and de- structive of virtue, to contend, that the ill consequence of an act is more to be considered than its immorality? To disregard a crime,, however heinous, because it may be ^,_-supposed not to have a bad effect on society ; and to pun- ''■^'^ ish slight offences severely, because they tend more im- mediately to disturb the public peace, is to sacrifice moral equity to political expediency. But, in fact, there is no re£(.l necessity for making such a sacrifice. If we would effectually provide for the lasting peace of society, we » Eden, 89. ^ jj. 12. 8 Eden. 12. * Id. 8. * j^, 10^ 344 LECTURES ON LAW. should first regard private offences, which are the sources of public crimes. The subtle distinctions, which casuists make between moral and political delinquencies, are offen- sive to common sense.' Concerning the standard by which punishments should be measured in municipal law, there lias been, as might be expected, as much diversity of sentiment, as concerning the standard for the measure of crimes. Public utility, says Mr. Eden, is the measure of human punishments ; and that utility is proportioned to the efficacy of the example. Liberty, says Montesquieu,^ is in its highest perfection, when criminal laws derive each punishment from the particular nature of the crime. Then the punishment does not flow from the capriciousness of the legislator, but from the very nature of the thing ; and man uses no violence to inan. Among crimes of different natures, says Sir William Blackstone, those should be most severely punished, which are most destructive to the public safety and happiness : and, among crimes of an equal malignity, those, which a man has the most frequent and easy opportunities of committing, which cannot be so easily guarded against as others ; and which, therefore, the offender has the greatest inducement to commit.^ Much to the same purpose are the expressions of Mr. Paley — the punishment should be in a proportion com- pounded of the mischief of the crime, and the ease with which it is executed.* The end of human punishment, says Mr. Paley, in an- other place, should regulate the measure of its severity.* To the propriety of this rule every one will subscribe ; but 1 1 Dag. .3.35, 34.3. ^ gaen, l.'il. » Sp. L. b. 12, .;. 4. * 4 Bl. Com. 16. ' 2 Paley, 290. « Id. 287. OF THE NATTJBE OF CRIMES. 345 it throws US back upon another, concerning which there is an equal variety and opposition of sentiment. Criminals, says Plato in his book concerning laws, are punished, not because they have offended, for what is done can never be undone, but that they may not offend.^ The very learned Mr. Selden objects to this doctrine, and says, that the antecedent crime is the essence of punishment.^ The amendment of the criminal is assigned by some as the end of punishment. To put it out of his power to do future mischief, is the end proposed by others. To deter from the imitation of his example, is that proposed by a third class of writers. Reparation to the injured, is an end recommended by a fourth class. Almost all agree, that between crimes and punishments there ought to be a proportion : but how can this propor- tion be fixed among those, who are so much at variance •with regard to the measure of the objects, between which it confessedly ought to subsist. If there is so much diversity and contrariety of opinion respecting the principles, how much greater diversity and contrariety of conduct maj' we ex,pect to find with regard to the execution, of the criminal law. Nay, how often shall we find those rules violated in its practice, the pro- priety of which is agreed in its theory. The theory of criminal law has not, till lately, been a subject of much attention or investigation. The Marquis of Beccaria led the way. His performance derives much importance from the sentiments and principles, which it contains: it derives, perhaps, more from those, which its appearance has excited in others. It induced several of the most celebrated literati in Europe to think upon the subject. The science, however, is, as yet, but in a weak J 1 Dag. 203, Eden, 6. " 1 Dag. 203. 346 LECTUEES ON LAW. and infantine state. To convince you that it is so, I need only refer you to the unsatisfactory, nay, the contradictory sentiments, of which I have given you an account, with reg^,rd to the two great heads of crimes and punishments. That account has been extracted from the most celebrated writers on the subject — from writers, indeed, who, on any subject, would deserve celebrity. To give you a history of the practice of criminal law would be a task, not difficult, because the materials are very copious ; but it would be very disgusting both to you and to me. . I draw the character of this practice from one, who appears to have a head and a heart well qualified to feel and to judge upon the subject — I mean the Author of the principles of penal law. " The perusal of the first volume of the English State Trials," ^ says he, " is a most disgustful drudgery." " The proceedings of our criminal courts at this era" — meaning that which preceded the revolution: — "are so disgraceful, not only to the nation, but to human nature, that, as they cannot be disbelieved, I wish them to be buried in oblivion. From oblivion, it is neither my duty nor inclination to rescue them." — No ; nor to rescue from oblivion the proceedings of other ages and of other countries, equally disgraceful and disgustful. I recite otllj"- a single instance. Mr. Pope, in his picturesque and interesting retrospect of the barbarous reigns of the Conqueror and his son, asks, alludiug to the laws of the forests — What wonder then, if beast or subject slain Were equal crimes in a despotic reign ? Both, doom'd alike, for sportive tyrants bled. But while the subject starv'd, the beast was fed.^ Many, I dare say, have considered this as a fine fanciful description of the Poet. It has, however, been exceeded by the strict severity of fact. We are, in the Life of Mr. I Eden, 199. 2 yj^indsor Forest. OF THE NATTJBB OF OEIMES. 34T Turgot, told in plain and sober prose, that so rigorous were the forest laws of France even so lately, that a peasant, charged with having killed a wild boar, alleged as an alleviation of the charge, that he thought it was a man.^ In these lectures, I have had frequent occasion to observe and to regret the imperfection and the impro- priety, which are seen too plainly in the civil codes and institutions of Europe : it is the remark — it is the just remark of Sir William Blackstone, that, " in every country of Europe, the criminal law is more rude and imperfect than the civil." ^ Instead of being, as it ought to be, an emanation from the law of nature and morality; it has too often been avowedly and systematically the reverse. It has been a combination of the strong against the weak, of the rich against the poor, of pride and interest against justice and humanity. Unfortunate, indeed, it is, that this has' been the case ; for we may truly say, that on the excellence of the criminal law, thfe liberty and the happi- ness of the people chiefly depend. By this time, you see very clearly, that I was well warranted to announce, even in the summary of my system, that the criminal law greatly needs reformation. I' added — In the United States, the seeds of reformation are sown. Those seeds, and the tender plants which from some of them are now beginning to spring, let it be our care to discover and to cultivate. From those weeds, luxuriant and strong, with which they are still inter- mingled, and by which, if they continue so, they will indubitably be choked, let it be our business industri- ously to separate them. From those beasts of the forest, by whom, if left unguarded, they will unquestionably be devoured, let it be our effort vigorously to defend them. In the fields of the common law, which, for ages past, have lain waste and neglected, some of those seeds and ' PH. Lect. 297. 2 4 Bl. Com. 3. '348 LKCTURES ON LAW. plants will, on an accurate inquiry, be found. In the gardens of the American constitutions, others, and the most choice of them, have been sown and planted by- liberal hands. The generical term used immemorially by the common law, to denote a crime, is felony. True indeed it is, that the idea of felony is now very generally and very strongly connected with capital punishment; so generally and so strongly, that if an act of parliament denominates any new offence a felony, the legal inference drawn from it is, that the offender shall be punished for it capitally. But this inference, whatever legal authority it may now have acquired, is by no means entitled to the merit of critical accuracy. At this moment, every felony does not, in England, receive a punishment which is capital : petit larceny is a felony. At this moment, one felony escapes in England, as it must in all other countries, every degree ■of punishment that is human : suicide is a felony. At the common law, few felonies, indeed, were puliished with ■death. Treason is now considered, both in legal and in ver- nacular language, as a species of crime distinct from that of felony ; but originally it was not go considered. " In ancient time," says my Lord Coke,^ " every treason was compi-ehended under the name of felony." Indeed it was so, down even to the time of Edward the Third; for the famous statute of treasons, made in his reign, uses these ■expressions — " treason or other felony." It will be very important to ascertain the true meaning of a term, employed so extensively and so long by the common law, to convey the idea of a crime. In order to ascertain the true meaning, it is frequently of importance to ascertain the true etymology, of a term ; and in order to ascertain that of the term felonyi much 1 3 Ins. 15. OF THE NATURE OF CKIMES. 349 learned labor has been bestowed by juridical lexicograi)liers and critics. Sir William Blackstone asserts that its original is un- doubtedly feudal ; and being so, we ought to look for its derivation in the Teutonic or German language ; and he prefers that given by Sir Henry Spelman ; according to •vihora, felon is taken from two northern words, /ee, which signifies, as all know, the fief, feud, or beneficiary estate ; and Ion, which signifies price or value. Felony is, there- fore, the same as pretium feudi, the consideration, for which a man gives up his fief ; as we say, in common speech, such an act is as much as your life or estate is worth. " In this sense," says Sir William, " it will clearly signify the feudal forfeiture, or act, by which an estate is forfeited or escheats to the lord." ^ He mentions two other derivations, and adds — " Sir Edward Coke, as his manner is, has given us a still stranger etymology ; that it is, " crimen animo felleo perpetratum," with a bitter or gallish inclination. 2 The authority of Sir Henry Spelman, in matters of legal antiquity, is unquestionably respectable : it is unfor- tunate, on this as on many other occasions, tliat his Glos- sary, the work here cited, is not in my power ; and, there- fore, I cannot examine particularly what he says upon the subject.^ 1 4 Bl. Com. 95, 9(i. ^ 4 BI. Com. 95. 1 Ins. .391 a [' The etymology of the word furnished by Blackstone seems more strange than that of Coke. The writer has a Law French and Law Latin dictionary, published in London in 1701, " Collected out of the best Authors, by F. C," whose further identity is unknown to him, but the following, which he takes from Spelman, does not corroborate Sir William Blackstone. And as both Coke (spelt Cooke) and Spelman are cited, indicating that both are consulted, and no disagreement noticed would tend to throw some light upon the derivation of the word as un- derstood half a century before Blackstone wrote. " Felony, Felonia, ae, /. Spel. 252. Lex. .54. Felony is so called either of the Latin word Fel, which is in English Gall, or of the ancient 350 LECTURES ON LAW. Serjeant Hawkins, so noted for his painful accuracy and his guarded caution, cites, in his treatise of the pleas of the crown, both the places which are cited by the Author of the Commentaries. The Serjeant had probably ex- amined both : he follows the description of my Lord Coke. From this, I infer one of the two things — that Mr. Haw- kins either found something in the Glossary, which pre- vented his assent to the conclusion drawri from it, or preferred the authority of my Lord Coke to that of Sir Henry Speiman. Thus, on one side we tind Sir Henry Spelmaii and Sir William Blackstone ; on the other, my Lord Coke and Serjeant Ha,wkins. In each scale of authority the weight is great ; but, in both, it is equal : the beam of decision inclines at neither end. If an estate could be purchased, instead of being for- feited, by a felony, I can easily conceive how the crime might be viewed as the consideration of the purchase : if a fee signified a crime, instead of signifying a fief, I can easily conceive how the estate might be viewed as the value forfeited by its commission. But the " pretium- feudi," applied in the manner and arrangement in which the application is made here, appears, in my humble con- ception, to be etymology inverted. Thus stand the pro- priety and the authority of the derivation adopted by the Author of the Commentaries. English word Fell or Fierce, because it is intended to be done with a cruel, bitter, fell, fierce or mischievous mind. Signifieat quodlibet capitale crimen felleo animo perpetratum, in which sense Murder is said to be done per Feloniam, and in ancient times this word Felonice was of so large an extent as it included High Treason, and by pardonino- of all Felonies, High Treason was pardoned. Coofc's 4 Rep." The peculiar fact is that though citing both Speiman and Coke, this compiler discovers no difference between them, nor suggests the deriva- tion suggested by Blackstone . Nor is the punishment the criterion of crime, but the malignant intent. Naturally, the crimes showing a wicked and abandoned heart would be visited with a severe punishment.] OF THE NATURE OF CRIMES. 351 ^ly L(ji(l Coke, when he refers the meaning and the description of felony to the motive, and not to the event, to the disposition which produced it, and not to the for- feiture which it incurs, cites, in the margin, the authority of Ghinville, the oldest book now extant in law, and two very ancient statutes ; one made iu the reign of Henry the Third ; the other in that of his son, Edward the First. With regard to Glanville, there must be some numerical mistake in the margin ; for it refers us to the fifteenth chapter of the fourteenth book: in that book, there are ■only eight chapters. The statutes I have examined : you shall judge whether they support that meaning of felony, for the truth of which they are cited. The first is the twenty-fifth chapter of the statute of Marlbridge, which was made in the fifty-second year of Henry the Third. It is very short. " In future, it shall not, by our justices, be adjudged murder, where it is found misfortune only ; but it shall take place as to such as are slain by felony — interfectis per feloniam — -and not otherwise." Felony is here put most obviously in a con- trasted opposition to misfortune ; intention to accident.^ But what is peculiarly unfortunate for the etymology of Sir William Blackstone, a forfeiture was incurred at that time, and, according to the reprehensible theory retained in England for the sake of fees and not for the sake of justice, a forfeiture is still incurred, where a homicide hap- pens by misfortune,^ as well as where it is committed fel- oniously. If felony, therefore, "signifies clearly," as he P The rule distinguishing the degree of guilt in cases of homicide ac- cording to the intent, or rather the state of evil intent (for in justifiable homicide the intent to kill is present), was requoted in Pennsylvania as early as 1*794. This evil intent Is called malice. An account of such statutes and judicial refinements upon the rules fixing degrees of guilt in such cases will be found in Vol. 18 of American Decisions, p. 774, and Vol. 74 of the same series, 321.] 2 4B1. Com. 188. 352 LECTURES ON LAW. says, " sucji'a crime as works a forfeiture of the offenders- lands or goods," the distinction mentioned in the statute would be absurd and ridiculous ; referring felony to the principle, and not to the consequences of the fact, the pro- vision in the statute is just and liumane. The other statute cited by my Lord Coke is the six- teenth chapter of Westminster the first, made in the third year of the first Edward. It distinguishes between tliose criminals who may be bailed, and those who ought not tO' be bailed. lu the latter class are ranked those, who are taken for house burning feloniously done — " felonieuse- ment fait." — Does this direct our view to the punishment,, or to the intention ? But I am able to produce instances still more ancient and still more strong. The Mirror of Justices, as has been mentioned oftener than once, contains a collection of the law, chiefly as it stood before the conquest ; and con- sequently before the feudal system was introduced intO' England. In that collection there is a chapter concern- ing incendiaries : they are thus described — Incendiaries are those who burn a city, a town, a house, a man, a beast or other chattels of their felony — " de leur felony," — in time of peace for hatred or vengeance. Do the words of their felony describe that principle, which gives the crime its " body and its form ? " or do they relate to a feudal forfeiture, then unknown ? But to put the matter in a light still more striking and clear ; in the next sentence, a case is supposed, in which the intention existed, the fact was committed ; but the effect did not take place ; and, consequently, the punish- ment was not to be inflicted : yet the action is said to be done feloniously. " If one puts fire to a man feloniously — felonieusement — so that he is scorched or hurt, but not killed by the fire ; it is not a capital crime.^ 1 4 Cou. Ang. Xor. 504. OF THE NATURE OP CRIMES. 353^ I suggest another argument, the legal force of which will, by every professional gentleman, be seen immediately to be irresistible. In every indictment for felony, the- fact charged must be laid to have been done feloniously. To express this meaning, no other term in our language is legally adequate. ^ The antiquity of indictments, and the high authority of their essential forms, T pretend not to ascertain or to circumscribe. But Sir William Blackstone, in this passage, is opposed not only by principle, by precedent, and by other authority ; he is, I think, clearly opposed by his own. He says here,, as we have seen, that felony clearly signifies the feudal forfeiture, or act, by which an estate is, forfeited, or escheats^ to the lord. And yet, in another place,^ he recommends great care in distinguishing between escheat to the lord, and forfeiture to the king ; and traces theni very properly to different sources. " Forfeiture of lands," says he, '' and of whatever else the offender possessed, was the doctrine of the old Saxon law, as a part of the punishment for the offence ; and does not at all relate to the feudal system, nor is the consequence of any signiory or lordship^ paramount ; but being a prerogative vested in the crown,, was neither superseded nor diminished by the introduction of the Norman tenures ; a fruit and consequence of which escheat must undoubtedly be reckoned. Escheat, therefore, operates in subordination to the more ancient and supe- rior law of forfeiture. " The doctrine of escheat upon attainder, taken singly, is this, that the blood of the tenant, by the commission of any felony (under which denomination all treasons were formerly comprised) is corrupted and stained, and the original donation of the feud is thereby determined, it being aways granted to the vassal on the implied condi- tion of dum bene se gegserit. Upon the thorough demon- 1 1 Haw. 65. a 2 Bl. Com. 251, 252. 354 LECTTJRBS ON LAW. stration of which guilt by legal attaindei-, the feudal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and the inheritable quality of his blood is extinguished and blotted out forever. In this situation the law of feudal escheat was brought into England at the conquest, and in general superadded to the ancient law of forfeiture. In consequence of which corruption and extinction of hereditary blood, the land of all felons would immediately revest in the' lord, but that the supe- rior law of forfeiture intervenes, and intercepts it in its passage ; in case of treason forever ; in case of other felony, for only a year and a day ; after which time, it goes to the lord in a regular course of escheat as it would have done to the heir of the felon, in case the feudal ten- ures had never been introduced. And that this is the true operation and -genuine history of escheats, will most evidently appear from this incident to gavelkind lands (which seem to be the old Saxon tenure) that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason." Instead, therefore, of donsidering felony as a feudal forfeiture or escheat, we are here taught, and properly taught, to view them as flowing from different sources, and, in their operations, not only distinct, but incompat- ible. Having thus traced the true meaning of felony, not to the event or part of the punishment, but to the principle and disposition from which it proceeds; our next step will be to ascertain, as plainly and as correctly as possible, the nature and character of that principle and disposition. It is characterized by the epithet /eZ?eo. Some derive it from the Latin verb fallo, which signifies, to - deceive, others from the Greek word yijAo?, which signifies an' im- postor or deseiver. In language, these derivations are OF THE NATURE OF CRIMES. 855 "different : in sentiment, they are the same. Perhaps they may lead us to as just a conception as can well be formed of felony — the generical term employed by the common law to denote a crime. Without mutual confidence between its members, society, it is evident, could not exist. This mutual and pervading confidence may well be considered as the at- tractive principle of the associating contract. To place that confidence in all the others is the social right, to de- serve that confidence from all the others is the social duty, of every member. To entertain a disposition, in which that confidence cannot with propriety ^be placed, is a breach of the social duty, and a violation of the social riglit : it is a crime inchoate. When an injury, atrocious in its nature, or evil in its example, is committed volun- tarily against any one member, the author of that volun- tary injury has, by his conduct, shown to all, that their light is violated ; that his duty is broken ; that they can- not enjoy any longer their right of placing confidence in Jiim ; that he entertains a disposition unworthy of this con- fidence ; that he is false, deceitful, and treacherous ; the ■crime is now completed. A disposition, regardless of social duty to all, and dis- covered by an injury, voluntary, and atrocious or danger- ous, committed against one — this is a crime against society. Neither the disposition separated from the injury, nor the injury separated from the disposition, constitutes a crime. But though both the ingredients are necessary they have not an equal operation in forming that character, from which a crime receives its denomination. In the consideration of crimes, the intention is chiefly to be regarded. As the injuries, and the breaches of social trust and con- fidence, which we have mentioned, may relate to a great variety of objects, and, in their own nature, may be more ■or less aggravated, it follows, that crimes may be distin- 23 S66 LECTURES ON LAW. guished into many different species, and are susceptible of many different degrees. Some think, that, at common law, the disposition, separated from the injury, constituted a crime. The say- ing, that " voluntas reputabitur pro facto," seems to have given rise to this opinion. On a close examination, how- ever, it will, I imagine, appear, that, in all the cases, on which the opinion is founded, and from which the saying is drawn, an injury was done, though not the injury in- tended to be done. A very ancient case is reported in the following man- ner. A man's wife went away with her adulterer ; and they compassed the death of the husband ; and as he was riding towards the sessions of oyer and terminer and jail delivery, they assaulted and beat him with weapons, so that he fell down as dead : upon this they fled. The husband recovered and made hue and cry, and came to the sessions, and showed all this matter to the justices ; and, upon the warrant of the justices, the woman and her adulterer were taken, indicted, and arraigned. All this special matter was found by a verdict ; and it was adjudged, that the man should be hanged, and the woman burnt.^ Here, in- deed, the injury intended and compassed — for to compass is, in legal understanding, to intend — was not carried inta complete execution: an atrocious injury, however, was perpetrated. Another case is mentioned to the following purpose. A young man was arraigned, because he intended to have stolen his master's goods, and came to his master's bed,, where he lay asleep, and, with a knife, attempted, with all his force, to have cut his throat; and, thinking that he had indeed cut it, fled ; upon this, the master cried out ; and his neighbors apprehended the young man. All this matter was found by a special verdict ; and, in the end,. 131ns. 5. OF THE NATURE OF CRIMES. 357 the young man was adjudged to be hanged. Quia voluntas reputabitur pro facto. But upon this case it is to be observed, that there was much more than mere in- tention : a barbarous outrage was committed on the person of a man ; and was even thought by the aggressor to have been fully completed in its most extreme extent. For the young man, it is said, thought that he had indeed cut his master's throat. Accordingly, my Lord Coke says upon this subject, that it was not a bare compassing or plotting of the death of a man, either by word or even by writing ; but that some overt deed to manifest that compassing or plotting was necessary. In a species of high treason, and in a species of felony,, the rule is still observed — that the intention manifested by a degree of injury, though not the degree intended, constitutes the crime. This is the case in compassing the death of the king. Though this intention be not com- pleted by his death ; the crime is completed by what is called an overt act, manifesting that intention by injurious and disloyal conduct. Indeed this rule is so strictlj'^ ob- served in this species of treason, that even when the in- tention is carried into full effect by putting the king to death, this completion itself, connected with the inten- tion, is not considered as constituting the crime: it is viewed only as the injurious and overt act which manifests that intention. Agreeably to these principles, the reg- icides of Charles the First were indicted as compassing his death, and the fact of beheading him was specified and made use of as one of the overt acts to prove this com- passing.^ The species of felonj-, in which the . rule above men- tioned still governs, is burglary. A burglar, says m}- Lord Coke, is, by the common law, a felon, who, in the night, breaketh and entereth into a mansion house of iKel. 8. 358 LECTUEES ON LAW. another, with intent to commit some felony within it.* The intention in this crime is to commit a felony ; but, in order to constitute the crime, it is not necessary that the intention should be executed ; the injurious acts done at the time and the place and in the manner described are ' sufficient : nay more ; if the intention be completed by committing the felony, yet, if it be not committed at the time and the place, and in the manner described, it is not a burglary, though it is a felony of another species. The foregoing cases, the view under which I have stated them, and the observations which I have drawn from them, show strongly the spirit of the common law in its estimation of crimes. In those cases, the felony or treason is traced to the malignity of the principles, not to the mischief of the consequences : the crime is consti- tuted, though the event fail. In other cases, indeed, the completion of the event is necessary to the constitution of the crime ; but even in these, the intention is much more considered than the act. " Actus non facit ream, nisi mens sit rea,"^ is, I believe, a rule of immemorial antiquity in the common law. If, indeed, it is an error, as the Marquis of Beccaria alleges it to be, to think a crime greater or less according to the intention of him by whom it is committed, it is, in the common law, an error of the most inveterate kind ; it is jin error which the experience of ages has not been able to correct. " Justitia," said Bracton many hundred j^ears ago, " est voluntarium bonum ; nee enim potest dici bonum proprie, nisi intercedente voluntate: toUe enim voluntatem, et erit omnis actus indifferens. Affectio quidem tua nomen imponitoperi tuo. Crimen non con- trahitur nisi voluntas nocendi^ intercedat. Voluntas et propositum distinguunt raaleficia. Furtum omnino non 1 3 Ins. 63. 33 ing_ g. « Brae. 26. OF THE NATURE OF CRIMES. 359 comniittitur sine affectu furandi. In maleficiis spectatur voluntas et non exitus." ^ But, on one hand as well as on the other, there is an extreme. The intention governs ; the intention commu- nicates its colors to the act : but the act — the injur lo as act must be done. Abstract turpitude is not, I apprehend, a subject of cognizance in a human forum. The breach of our duty to man and to society alone is the object of municipal reprehension. For those sentiments, for those principles, nay for those actions, by which no other mem- ber of society can be affected, no one member is account- able to the others. For such sentiments, for such princi- ples, and for such actions, he is aijienable only to the tri- bunal within, and the tribunal above him. In the human code we have seen it to be a rule, that without an injury there is no crime. Let us not, however, confine our conceptions of injury to the loss or to the risk merely of property. Of injury,, all our rights, natural and civil, absolute and relative, are susceptible. Every injurious violation, therefore, of any of those rights may lay the foundation of a crime. The strings of society are sometimes stretched in the nicest unison : strike one, and all emit a complaining tone. Is a single member of society menaced ? He who threatens is bound in a recognizance to keep the peace towards everj other citizen, as well as towards him, to whom the immedi- ate cause of alarm was given.^ I have now traced and described the principles of the common law with regard to the measure of crimes. We Iiave seen with what wise and experienced caution its. rules are guarded from every extreme. The result seems. to be, that the common law estimates crimes by the de- sign chiefly, but pays a proportionate attention to the fact — by the malignity, without overlooking the injury, of the 1 Id. 136 b. 24 Bl. Com. 250. 360 LECTURES ON LAW. transaction. After ideal perfection in her calculations concerning those amounts and proportions she aspires not ; she is satisfied with that practical degree of accuracy, which a long and careful experience can attain. From the consideration of crimes I pass to the consider- ation of punishments. On this subject some rules, and some valuable ones too, may be gleaned from the principles and the practice of the common law ; but we must have recourse chiefly to those which are founded on our new but improved political establishments, and to those which result from the general principles of criminal jurispru- dence. Every crime, we have seen, includes an injury : this I consider as a leading maxim in the doctrine of crimes. In the punishment of every crime, reparation for the included injury ought to be involved : this I consider as a leading maxim in the doctrine of punishments. In this particular, the law of England is defective to a degree both gross and cruel. The father of a family, whose subsistence depends on his personal industry, is, in the arms of his wife, and amidst his surrounding children, stabbed by the order of an insolent and barbarous neigh- bor. The miserable sufferers by the eveirt are the miser- able witnesses of the crime. The assassin, who has or- dered it, is opulent and powerful. To the honor of the English law and of its administration be it said, that no degree of opulence or power will purchase or command impunity to the guilty : this assassin will feel its avenging arm. But to the honor of the English law and of its administration can it be added, that every degree of injury shall find its proportioned degree of reparation ; and that as the assassin is not above its power, so those who suffer by the assassination are not beneath its care ? No. This addition cannot be made. The widow and the orphans, who were the witnesses of the crime and the sufferers by OF THE NATURE OF CEIMBS. 361 the loss, are recognized in the former, but not in the latter character. They attend to give their testimony on the trial. The rich culprit is condemned as he ought to be. They apply to obtain reparation for the loss — of the life? That is irreparable — of the industry of their husband and father, from the ample patrimony of the criminal, who occasioned the loss ? To this application, reasonable and just, what is the answer which must be given in the spirit of the law ? His property is forfeited by the crime ; no funds remain to make you reparation for your loss. They are dismissed, without being reimbursed the expense of their attendance in consequence of their duty and the order of the law ; for the king pays no costs. Can this be right? ^ It was, in ancient times, ordered otherwise and better. In the early part of our juridical history, we find that a part of the composition or forfeiture for homicide was given to the relations of the person deceased.^ We find likewise, that, in those times, penalties in cases of personal injury had so far the nature of a civil redress, that they were given as a compensation to the person injured.^ Thus it was among the ancient Saxons. Reparation, indeed, vi^as one great object in the Anglo-Saxon system of crim- inal law. The principle may be traced to the Germans as described by Tacitus.* " Recipitque satisfactionem uni- versa domus." In one of the very early laws of Pennsyl- vania, it is directed that " those next of kin shall be con- sidered in the loss occasioned by the death of the party killed." 5 Another quality of the Saxon jurisprudence in criminal matters deserves our attention — I add, our imitation : they P This is remedied now by allowing a private action for the loss of sup- port by the next of kin.] 2 2 Henry 289. 2 Dag. 90. Eden. 217. » Reev. 12. * De Mor. Germ. c. 21. 2 Dag. 77. ^ e_ q. Book A. p. 49, 362 LECTURES ON LAW. inflicted very few capital punishments.^ Such was the- case, we are told, formerly in Scotland ; such was it originally in Ireland ; and such was it anciently in Wales.^ In every case before judgment, the Romans allowed an accused citizen to withdraw himself from the consequences of conviction into a voluntary exile. To this institution, the former practice of abjuration in England bore a strong resemblance. This was permitted, as my Lord Coke says, when the criminal chose rather " perdere patriam, quam vitam." ^ On the same principles, a liberty was given, in Greece, to a person accused to disappear after his first defence, and retire into voluntary banishment — in the lan- guage of the English law, to abjure the realm after the indictment was found.* Sabacos, one of the legislators of Egypt, went still fur- ther. He abolished capital punishments, and ordained, that such criminals as were judged worthy of death should be employed in the public works. Egypt, he thought, would derive more advantage from this kind of punish- ment; which, being imposed for life, appeared equally adapted to punish and to repress crimes.^ Punishments ought unquestionably to be moderate and mild. I know the opinion advanced by some writers, that the number of crimes is diminished by the severity of punishments : I know, that if we inspect the greatest part of the criminal codes, their unwieldy size and their ensanguined hue will force us to acknowledge, that the opinion has been general and prevalent. On accurate and unbiassed examination, however, it will appear to be an opinion unfounded and pernicious, inconsistent with the principles of our nature, and, by a necessary consequence,, with those of wise and good government. > 4 Bl. Com. 406. ' Whitak. 278. » Eden, 31. * 2 Gog. Or. L. 72. » 3 Gog. Or. L. 15. OF THE NATURE OP CRIMES. 363 So far as any sentiment of generous sympathy is suf- fered, by a merciless code, to remain among the citizens, their abhorrence of crimes is, by the barbarous exhibitions of human agony, sunk in the commiseration of criminals. These barbarous exhibitions are productive of another bad effect — a latent and gradual, but a powerful, because a natural, aversion to the laws. Can laws, which are a natural and a just object of aversion, receive a cheerful obedience, or secure a regular and uniform execution ? The expectation is forbidden by some of the strongest principles in the human frame. Such laws, while they excite the compassion of society for those who suffer, rouse its indignation against those who are active in the steps preparatory to their sufferings. The result of those combined emotions, operating vigor- ously in concert, may be easily conjectured. The criminal will probably be dismissed without prosecution, by those whom he has injured. If prosecuted and tried, the jury will probably find, or think they find, some decent ground on which they may be justified or, at least, excused in giv- ing a verdict of . acquittal. If convicted, the judges will, with avidity, receive and support every, the nicest, excep- tion to the proceedings against him ; and, if all other thing* should fail, will have recourse to the last expedient within their reach for exempting him from rigorous punishment — that of recommending him to the mercy of the pardoning power. In this manner the acerbity of punishment deadens the execution of the law. The criminal, pardoned, repeats the crime, under the expectation that the impunity also will be repeated. The habits of vice and depravity are gradually formed within him. Those habits acquire, by exercise, continued acces- sions of strength and inveteracy. In the progress of his course, he is led to engage in some desperate attempt. From one desperate attempt he boldly proceeds to another ;. .364 LECTURES ON LAW. till, at last, he necessarily becomes the victim of that pre- posterous rigor, which repeated impunity had taught him to despise, because it had persuaded him that he might always escape. When, on the other hand, punishments are moderate and mild, every one will, from a sense of interest and of duty, take his proper part in detecting, in exposing, in trying, and in passing sentence on crimes. The consequence will be, that criminals will seldom elude the vigilance, or bafHe the energy of public justice. True it is, that, on some emergencies, excesses of a tem- porary nature may receive a sudden check from rigorous penalties : but their continuance and their frequency in- troduce and diffuse a hardened insensibility among the citizens ; and this insensibility, in its turn, gives occasion or pretence to the further extension and multiplication of those penalties. Thus one degree of severity opens and smooths the way for another, till, at length, under the specious appearance of necessary justice, a system of cruelty is established by law. Such a system is caculated to erad- icate all the manly sentiments of the soul, and to substitute in their place dispositions of the most depraved and degrad- ing kind. The principles both of utility and of justice require, that the commission of a crime should be followed by a speedy infliction of the punishment. The association of ideas has vast power over the senti- ments, the passions, and the conduct of men. When a pen- alty marches close in the rear of the offence, against which it is denounced, an association, strong and striking, is pro- duced between them, and they are viewed in the inseparable relation of cause and effect. When, on the contrary, the punishment is procrastinated to a remote period, this con- nection is considered as weak and' precarious, and the execution of the law is beheld and suffered as a detached or THE NATURE OF CKIMBS. 365 instance of severity, warranted by no cogent reason, and springing from no laudable motive. It is just, as well as useful, that the punishment should be inflicted soon after the commission of the crime. It should never be forgotten, that imprisonment, though often necessary for the safe custody of the person accused, is, nevertheless, in itself a punishment — a punishment galling to some of the finest feelings of the heart — a punishment, too, which, as it precedes conviction, may be as undeserved as it is distressing. But imprisonment is not the only penalty, which an accused person undergoes before his trial. He undergoes also the corroding torment of suspense — the keenest agony, perhaps, which falls to the lot of suffering humanity. This agony is by no means to be estimated by the real proba- bility or danger of conviction : it bears a compound propor- tion to the delicacy of sentiment and the strength of imagin- ation possessed by him, who is doomed to become its prey. These observations show, that those accused of crimes ■should be speedily tried ; and that those convicted of them should be speedily punished. But with regard to this, as with regard to almost every other subject, there is an ex- treme on one hand as well as on the other ; and the ex- tremes on each hand should be avoided with equal care. In some cases, at some times, and under some circumstances, a delay of the trial and of the punishment, instead of being hurtful or pernicious, may, in the highest degree, be salu- tary and beneficial, both to the public and to him who is accused or convicted. Prejudices may naturally arise, or may be artfully fomented, against the crime, or against the man who is charged with having committed it. A delay should be allowed, that those prejudices may subside, and that neither the judges nor jurors may, at the trial, act under the fascinat- ing impressions of sentiments conceived before the evidence 360 LBCTTTRES ON LAW. is heard, instead of the calm influence of those which should be its impartial and deliberate result. A sufficient time should be given to prepare the prosecution on the part of the state, and the defence of it on. the part of the prisoner. This time must vary according to different persons, dif- ferent crimes, and different situations. After conviction, the punishment assigned to an inferior- offence should be inflicted with much expedition. This- will strengthen the useful association between them ; one appearing as the immediate and unavoidable consequence of the other. When a sentence of death is pronounced, such an interval should be permitted to elapse before its execution, as will render the language of political expedi- ency consonant to the language of religion. Under these qualifications, the speedy punishment of crimes should form a part in every sj'stem of criminal jurisprudence. The constitution of Pennsylvania ^ declares that in all criminal prosecutions, the accused has a " right to a speedy trial." The certainty of punishment is a quality of the greatest iriiportance. This quality is, in its operation, most merci- ful as well as most powerful. When a criminal determines on the commission of a crime, he is not so much influenced by the lenity of the punishment, as by the expectation, that, in some way or other, he may be fortunate enough to avoid it. This is particularly the case with him, when this ex- pectation is cherished by the example or by the experience of impunity. It was the saying of Solon, that he had com- pleted his system of laws by the combined energy of justice and strength. By this expression he meant to denote, that laws, of themselves, would be of very little service, unless they were inf orced by a faithful and an effectual execution of them. The strict execution of every criminal law is the dictate of humanity as well as of wisdom. 1 Art. 9, s. 9. OF THE NATURE OF CRIMES. 367 By tliis rule, important as well as general, I mean not to exclude the pardoning power from mj system of crimi- nal jurisprudence. That power ought to continue till the system and the proceedings under it become absolutely perfect — in other words, it ought to continue while laws are made and administered by men. But I mean that the exercise of the pardoning power should be confined to ex- ceptions, well ascertained, from the general rule. Confined in this manner, instead of shaking the truth or diminishing the force of the rule, the exercise of the power to pardon will confirm the former and increase the latter. Need I mention it as a rule, that punishments ought to be inflicted upon those persons, only, who have committed crimes — that the innocent ought not to be blended in cruel and ruinous confusion with the guilty ? Yes ; it is necessary to mention this as a rule : for, how- ever plain and straight it is, when viewed through the pure and clear ether of reason and humanity, it has not been seen by those whom pride and avarice have blinded ; naj^, it has been represented as a rule, crooked and distorted, by those who have beheld it through the gross and refract- ing atmosphere of false policy and false philosophy. The doctrines of forfeiture and corruption of blood have found their ingenious advocates, as well as their powerful patrons. There have been countries and times, — there still are countries and times, when and where the rule, founded in justice and nature, that the property of the parent is the inheritance of his children, has been intercepted in its benign operation by the cruel interference of another rule, founded in tyranny and avarice — the crimes of the subject are the inheritance of the prince. At those times, and in those countries, an insult to society becomes a pecuniary favor to the crown ; the appointed guardian of the public security becomes interested in the violation of the law ; and 368 LECTUKES ON LAW. the hallowed ministers of justice become the rapacious agents of the treasury. A poisoned fountain throws out its bitter waters in every direction. This rule, hostile to the nearest domestic con- nections, was unfriendly also to the safety of the public. If the inheritance was reaped by the prince ; it was, by him, deemed a matter of small moment, that impunity was stipu- lated for the crime. Accordingly, we are told, that, in the thirteenth century, one of the methods, by which the kings of England and of other parts of Europe supplied their exchequers, was the sale of pardons for crimes.'' When crimes were the sources of princely wealth, it is no- wonder if they were objects of princely indulgence. In this manner we may naturally account for the disorder and violence, which, in those ages, prevailed so universally over Europe. The law of forfeiture it has been attempted to defend by considerations drawn from utility, and also from nat- ural justice. The high authority of Cicero is also ^ pro- duced upon this occasion — " Nee vero me fugit, quam sit acerbum, parentum scelera filiorum poenis lui ; sed hoc prseclarelegibuscompara turn est, utcaritas liberorum amici- ores parentes reipublicee redderet." ^ Amicus Cicero — sed magis amica Veritas. For the high authority of Cicero, I certainly entertain a proportionate degree of respect ; but implicit deference should be paid to none. Besides ; in the passage quoted, Cicero does not speak in a character of authority. He decides not as a judge : he pleads his own cause as a culprit ; he defends, before Brutus, a rigor- ous vote, which he had given in the senate, against the sons of Lepidus. But farther ; upon a closer investigation, it will, perhaps, be found, that the principle of policy, on which Cicero rests his defence, as it certainly is not of the most gener- 1 Bar. on St. 27. = 4 31. Com. 375. a Ep. ad Brut. 12. OF THE NATURE OF CRIMES. 369 ous, neither is it of the most enlarged kind ; since f orf eitures^ far from preventing public crimes and public dangers, may have the strongest tendency to multiply and to perpetuate both. When the law says, that the children of him, who has been guilty of crimes, shall be bereaved of all their hopes and all their rights of inheritance ; that they shall languish in perpetual indigence and distress ; that their whole life shall be one dark scene of punishment, uninter- mitted and unabating ; and that death alone shall provide for them an asylum from their misery — when such is the language or such is the effect of the law ; with what sentiments must it inspire those, who are doomed to be- come its unfortunate though unoffending victims ? — with what sentiments must it inspire those, who from humanity feel, or by nature are bound to take, an interest in the fortunes and in the fate of those victims, unfortunate though unoffending? With sentiments of pain and disgust — with sentiments of irritation and disappointment — with sentiments of a deadly feud against the state which has adopted, and, perhaps, against the citizens also who have enforced it. Vain is the attempt to range the cold and timid sugges- tions of policy against the vivid and the indelible feelings of nature, and against the warm though impartial dictates of humanity. Who will undertake to satisfy an inno- cent son, that he is the victim — who will undertake to persuade his relations — his virtuous — his patriotic — his meritoriously patriotic relations, that one so nearly con- nected with them is the victim, whom the public good indispensably demands to be offered up as a sacrifice to atone for the guilt of his father ? The sons of Lepidus were the children of the sister of Brutus. " Contra pa- trem Lepidum Brutus avunculus," says he very naturally in his answer to Cicero. An attempt has been likewise made to support the law 370 LECTUEES ON LAW. of forfeiture on the foundation of natural justice.^ " All property," says Sir William Blackstone,^ " is derived from society, being one of those civil ^ rights which are conferred , upon individuals, in exchange for that degree of natural freedom, which every man must sacrifice when he enters into social communities. If therefore a member of any national community violates the fundamental contract of his associa- tion, by transgressing the municipal law, he forfeits his light to such privileges as he claims by that contract ; and the state may veiy justly resume that portion of property or any part of it, which the laws have before assigned him. Hence in every offence of an atrocious kind, the laws of England have exacted a total confiscation of the movables or personal estate ; and in many cases a perpetual, in others only a temporary, loss of the offender's immovables or landed property, and have vested them both in the king, who is the person supposed to be offended, being the only visible magistrate in whom the majesty of the public resides. It has often been said, that, at elections, the people of England sell their liberty for their own money ; but this, I presume, is the first time that this kind of exchange has been brought forward as a fundamental article of their original contract. A philosophizing is, on some occasions, an unfortunate turn. It was, we are told, an opinion long received in China, that the globe of the earth was supported on the back of an elephant. The people were satisfied and in- quired no farther. An ingenious philosopher, however, was not satisfied so easily. If the earth, reasoned he, must be supported on the back of an elephant, pari ratione, the elephant must stand on the back of something else. Ex- actly fitted for his design, he found a broad-backed tortoise. He placed the elephant upon it, and published his new theory of the manner in which the globe was supported. 1 4 Bl. Com. :!7-). ^ 1 Bl. Com. 299. » 4 Bl. Com. 9. OP THE NATURE OF CRIMES. 371 Unfortunately, the spirit of his ars philosophandi caught ; and he was asked, — on whose back will you place the tor- toise ? To this a satisfactory answer is not yet found in the history of this Chinese philosophy. The sceptres of princes required a support : the political creed of Europe rested them on forfeitures. The people paid and inquired not. But the attempt is now made to find a rational foundation for forfeitures : they are rested on property as a civil, and not as a natural right. In both instances, the mistake was made, and the wrong direction was pursued, in the first step which was taken. Forfeitures for crimes, according to the true principles of political philosophy, were a foundation as improper for the revenue of princes, as an elephant, according to the true principles of natural philosophy, was inadequate to sustain the weight of the globe. But the investigation of the doctrine — that property is a civil right — will, as I have already mentioned, find its appropriated place in the second division of my system. The observations which we have made are equally ap- plicable to the forfeiture of dower, as to the forfeiture of inheritance. Corruption of blood is another principle, I'uinous and unjust, by which the innocent are involved in the punish- ment of the guilty. It extends both upwards and down- wards. A person attainted cannot inherit lands from his ancestors : he cannot transmit them to any heir : he even obstructs all descents to his posterity, whenever they must, through him, deduce their right from a more remote ancestor.' This unnatural principle — I call it unnatural, because it dissolves, as far as human laws can dissolve, the closest and the dearest ties of nature — this unnatural principle was introduced by the feudal system, pregnant with so ' 4 Bl Com. 381. [See note p. 375.] 24 372 LECTUKES ON LAW. many other principles of the most mischievous kind : and it still continues to disgrace the criminal jurisprudence of England. It begins now, however, to be very generally deserted as to its principle. The ingenious and elegant Mr. Eden, who seems to cling to forfeiture, at least in a qualified degree, as "to a branch of the penal system, which will not be suffered to fall from the body of our law, without serious consideration," ^ admits very freely, that it is not so easy to reconcile, either to reason or ben- evolence, that corruption of blood, by which the inherit- able quality is for ever extinguished.^ Sir William Black- stone intimates a very laudable wish, that the whole doctrine may, in England, be antiquated by one undistin- guishing law. ^ This subject of extending punishments beyond the guilty, I conclude with a passage from one of the laws of Arcadius and Honorius, the Roman emperors. " Sancimus ibi esse psenam, ubi et noxa est ; propinquos, natos, familiares, procul a calumnia submoveraus, quos reos sceleris societas non facit. Nee enim aiEnitas, vel amicitia, nefarium crimen admittunt ; peccato igitur sues teneant auctores ; nee ulterius progrediatur metus quam reperiatur delictum." * As the punishment ought to be confined to the criminal ; so it ought to bear a proportion, it ought, if possible, to bear even an analogy, to the crime.^ This is a principle, the truth of which requires little proof ; but the application of which requires much illustration. " It is not only," says the Marquis of Beccaria, " the common interest of mankind that crimes should not be com- mitted ; but it is their interest also that crimes of every kind should be less frequent, in proportion to the mischief which they produce in society. The means, therefore, which the legislature use to prevent crimes, should be more 1 Eden, 48. = Id. 39. a 4 Bl. Com. 382. * Eden. 49. ' Id. 83. OF THE NATURE OP CRIMES. 373 powerful in proportion as the)' are destructive of the pub- lic safety and happiness. Therefore there ought to be a fixed proportion between punishments and crimes." " A scale of crimes," adds he, " may be formed, of which the first degree should consist of such as tend immediately to the dissolution of society ; and the last, of the smallest possible injustice done to a private member of that society." ^ To a scale of crimes, a corresponding scale of punish- ments should be added, each of which ought to be modi- fied, as far as possible, according to the nature, the kind, and the degree of the crime, to which it is annexed. To select, where it can be done, a punishment analogous to the crime, is an excellent method to strengthen that asso- ciation of ideas, which it is very important to establish between them. In the graduation of each of these scales, and in the relative adjustment between them, a perfect accuracy is unquestionably unattainable. The different shades both of crimes and of punishments are so numerous, and run so much into one another, that it is impossible for human skill to mark them, in every instance, distinctly and correctly. How many intervening degrees of criminality are there between a larceny of the petty kind and a robbery committed with everj' degree of personal insult and outrage — between a private slander and a public in- flammatory libel — ^between a simple menace and a pre- meditated murder — between an unfounded murmur and a daring rebellion against the government? But though everything cannot, much may be done. If a complete detail cannot be accomplished ; certain leading rules may be established : if every minute grade cannot be precisely ascertained ; yet the principal divisions may be marked by wise and sagacious legislation. Crimes and 1 Bee. c. 6, p. 17, 19. 374 LECTTTRES ON LAW. punishments too may be distributed into their proper classes ; and the general principles of proportion and analogy maybe maintained without any gross or flagrant violation. To maintain them is a matter of the first moment in criminal jurisprudence. Every citizen ought to know- when he is guilty : every citizen ought to know, as far as possible, the degree of his guilt. This knowledge is as necessary to regulate the verdicts of jurors and the decis- ions of judges, as it is to regulate the conduct of citizens. This knowledge ought certainly to be in the possession of those who make laws to regulate all. " Optima est lex," says my Lord Bacon, " quse mini- mum relinquit arbi trio judicis.''^ If this is true with re- gard to law in general : it must be very true, and very important too, with regard to the law of crimes and punish- ments. What kind of legislation must that have been, by which " not only ignorant and rude unlearned people, but also learned and expert people, minding honesty, were often and many times trapped and snared ! " Yet such is the character of the criminal legislation under Henry the Eighth, given by the first parliament assembled in the reign of his daughter Mary ; ^ which could well describe, for it still smarted under the legislative rod. The candor, at least, of legislation should be inviolable. " Misera est servitus, ubi jus est incognitum." When a citizen first knows the law from the jury who convict, or from the judges ^vho condemn him ; it appears as if his life and his liberty were laid prostrate before a new and arbi- trary power ; and the sense of general safety, so necessary to the enjoyment of general happiness, is weakened or destroyed. But a law uncertain is, so far, a law unknown. To punish by a law indefinite and unintelligible ! — Is it better than to punish without any law ? 1 1 Ld. Bac. 349. » St. 1. Mary. c. 1. OF THE NATURE OF CRIMES. 375 A laudable, though, perhaps, an improvable degree of accuracy has been attained by the common law, in its de- scriptions of crimes and punishments. On this subject, I now enter into a particular detail. To the description of each crime, I shall subjoin that of its punishment ; and shall mention, as I proceed, the alterations intioduced by the constitution and laws of the United States and of Pennsylvania. The laws of other nations will frequently be considered in a comparative view.^ P Forfeiture of property for crimes is very rare in the United States, and the constitutional provision (Art. 3, § 3, ch.2) — "That no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted" — >inarks the boundary and extent of for- feitures. During the civil war of 1861-5, the law of forfeiture was applied and estates confiscated ; but it was held that though the estate of the owner was a fee-simple, the forfeiture could only affect his life interest and power of alienation, and did not cut ofi his heirs. Bigelow v. Forrest, 9 Wall. U. S. 339 ] CHAPTER II. OF CRIMES AGAINST THE RIGHT OP rNDIVIDUALS TO THEIR PROPERTY. Every crime includes an injury : every injury includes a violation of a right. The investigations, which we have hitherto made concerning rights, will direct our course in that which we are now to make concerning wrongs. I assumed, though, for the reasons assigned, I have not yet proved, that a man has a right to his property. I begin my enumeration of crimes with those which infringe this right. I have observed that every injurious violation of our rights, natural and civil, absolute and relative, may lay the foundation of a crime.^ I did not mean, however, to insinuate, by this observation, that every injury ought to be considered by the law in a criminal point of view. For every injury let reparation be made by the civil code, in proportion to the loss sustained; but let those injuries alone, which become formidable to society by their intrin- sic atrocity, or by their dangerous example, be resented by society and prosecuted as crimes. Agreeably to this principle, a private injury done without actual violence, cannot be prosecuted by an indictment.^ It is not con- sidered as affecting the community. This principle, however, seems to have gained its full establishment only by the liberality of modern times. It 1 Ante, p. 359. 2 Burr. 1703-1733. 376 OP CRIMES AGAINST THE RIGHT OP INDIVIDUALS. 377 is remarkable, that a law made on this liberal principle, in an early period of Pennsylvania, was repealed by the king in council.^ But this is not the only instance, in which the improving spirit of our legislation has been at first checked, but has received subsequent countenance b)' late decisions in England. With the enjoyment and security of property, the security and the authenticity of its evidences is intimately con- nected. For this reason, dangerous and deliberate attacks upon that security or authenticity are crimes by the com- mon law. Forgery, at the common law, may be described " the fraudulent making or alteration of a writing, to the pre- judice of another man's right." For this crime, the pun- ishment of fine, imprisonment, and pillory may, by the common law, be inflicted on the criminal.^ Among the Egyptians, public notaries, who forged false deeds, or who suppressed or added any thing to the writings, which they had received to copy, were condemned to lose both their hands. They were punished in that part, which had been particularly instrumental in the crime.^ In Lorrain, so long ago as the fourteenth century, forgery was punished with banishment.* The first act of parliament, which appears against it, was made in the reign of Henry the Fifth. This act pun- ishes it by satisfaction to the party injured, and by a fine to the king.® But this first statute has been the fruitful mother of a thousand more. True it is, that the increase of commerce, the invention of negotiable and even current paper, the institution of national funds, and the many com- plex securities arid evidences of real property have justly rendered the crime of forgery, beside its intrinsic base- ness — for it is a species of the crimen falsi — a considera- 1 R. O. Book A. vol. 1, p. 14. 2 4 bi. Com. 245. » 1 Gog. Or. L. 59. * Bar. on St. 380. « Id. ib. 378 LECTURES ON LAW. tion of great importance and extent. But is it equally- true, that all this is a sufficient reason, why, in almost all cases possible to be conceived, every forgery, which tends to defraud, either in the name of a I'eal or of a fictitious person, should be made, as in England it is now made, a capital crime ? ^ " Pluet super populum laqueos." There is a learned civilian, says my Lord Bacon, who expounds this curse of the prophet, of a multitude of penal laws ; which are worse than showers of hail or tempest upon cattle ; for they fall upon men.^ By a law of Pennsylvania, whoever shall forge, deface, corrupt, or embezzle deeds and other instruments of writ- ing, shall forfeit double the value of the damage sustained, one half of which shall go to the party injured ; and shall in the pillory, or otherwise, be disgraced as a false person.* By a law of the United States it is enacted, that if any person shall falsely make, alter, forge, or counterfeit, or cause or procure to be falsely made, altered, forged, or counterfeited, or willingly act or assist in the false making, altering, forging, or counterfeiting any certificate, indent, or other public security of the United States; or shall utter, put off, or offer, or cause to be uttered, put off, or offered in payment or for sale, any such false, forged, altered, or counterfeited certificate, indent, or other public security, with intent to defraud any person, knowing the same to be false, altered, forged, or counterfeited, and shall be thereof convicted ; every such person shall suffer death.* To forge, says my Lord Coke, is metaphorically taken from the smith, who beateth upon his anvil, and forgeth what fashion or shape he will. The offence is called crimen falsi, and the offender falsarius ; and the Latin word to forge isfalsare ov fahrioare. And this is properly 1 4 Bl. Com. 247. « 4 Ld. Bac. 3. ' 1 Laws Penn. 5. * Laws U. S. 1 cong. 2 sess. c. 9, s. 14. OF CRIMES AGiAINST THE EIGHTS OP INDIVIDUALS. 379 taken when the act is done in the name of * another per- son.^ " Falsely to make," says he, are larger words than " to forge ; " for one may make a false writing within this act (he speaks of the 6th Eliz. c. 14, in which, as to the present point, the words used are substantially the same with the words of the law now under consideration), though it be not forged in the name of another, nor his seal nor hand counterfeited. As if a man make a true deed of feoffment under his hand and seal of the manor of Dale unto B. ; and B. or some other rase out D and put in S., and then when the true deed was of the manor of Dale, now it is falsely altered and made the manor of Sale ; this is a false writing within the purview of the statute.^ Another crime against the right of property is larceny. Larceny is described — the felonious and fraudulent taking and carrying away of the personal goods of another.^ The Mirror describes the crime as committed, " treacherouse- ment." * More indictments are to be found for larceny, among the records of England, than for all the other crimes known to the law. It is computed that nineteen criminals out of twenty are prosecuted for this crime.® According as the opinions and sentiments of men con- ceining property have been more or less correct, their no- tions concerning larceny have been more or less pure. In- deed in the nature of things, this must be the case. Theft, or the secret acquisition of property, was, at Sparta, thought neither a crime nor a shame. Why ? Because at Sparta, Lycurgus had established a community of goods ; and when one got hold of a larger share than his neigh- bors, especially among the young people, it was considered merely as an ins.tance of juvenile address, and as indicat- ing a superior degree of future dexterity. The senatorial order at Rome, we are told, enjoyed the distinguished 1 3 Ins. 169. 2 3 Ins. 169. ' Id. 107, 4 BI. Com. 2.30. * G. 1, s. 10, 2 Eeev. 42. » Bar. on St. 443. 380 ' LECTURES ON LAW. privilege of being exempted from every prosecution for lar- ceny .^ What is still more remarkable, a similar claim of privilege was, in the time of Charles the Second, insisted on by the House of Lords in England, when a bill was sent to them from the Commons, to punish — wood stealers ! ^ This anecdote we have on the authority of my Lord Clar- endon, a peer, the chancellor, and the speaker of the House of Lords. Much has been said, in the English law books, concern- ing the distinction between grand and petit larceny. The distinction, however ancient, was never founded upon any rational principle ; and the farther it flowed from its orig- inal source, the more unreasonable and cruel it became. Well might Sir Henry Spelman complain, that, while everything else became daily dearer, the life of a man be- came more and more cheap.^ But, what is more, this dis- tinction, irrational and i-eally oppi'essive, appears never to have been established with any degree of accui-acy. The Author of Fleta says, if a person steals the value of twelve pence and more, he shall be punished capitally. Britton, in one place, says, if it is twelve pence or more. At this time, therefore — that is, in the reign of Edward the First — it was unsettled whether twelve pence was sufiicient, or more than twelve pence was necessary, to superinduce the capital punishment.* A similar diversity and uncertainty of opinion appears in the reign of Edward the Third.^ In the description of larceny, the taking is an essential part. For every felony includes a trespass ; and if the person is guilty of no trespass in taking the goods, he can be guilty of no felony in carrying them away.« This is precisely the law language, conveying the doctrine, which I have illustrated generally and fully — that, without an 1 Bar. on St. 491. 2 Id. ibid. s 4 b1. Com. 238. * 1 Reev. 485. 6 2 Keev. 204. « 1 Haw. 89. Kel. 24. OF CRIMES AGAINST THE EIGHT OF INDIVIDUALS. 381 injury, there can be no crime. A real trespass must be committed ; but a real trespass will not be covered or ex- cused by any artful stratagem to prevent the appearance of it. If one, who intends to steal the goods of another, obtains, with that intention, the process of the law to get them into his possession, in a manner apparently legal ; this contrivance — an abuse of the law — will not excuse him from a charge of a felonious taking.^ To a larceny it is as necessary that the goods be carried away, as that they be taken. But the least removal of the goods is sufficient to satisfy this part of the description. To remove them from one place to another, even in the same room, is, in legal understanding, to carry them away. One, who intended to steal plate, took it out of a trunk, and laid it upon the floor, but was surprised before he could do more ; he was adjudged guilty of larceny.^ The taking and carrying away, says Sir William Black- stone, and very truly, must also be felonious, that is, done animo furandi. This, by the way, is a clear and decided instance, that, in the meaning of the common law, felony is referred to the intention, and not to the event. As we saw in the former part of the description, that the crime could not exist without the injury ; we see now, that the injury will not constitute the crime without the criminal intention. For, as the Author of the Commentaries next observes, this requisite indemnifies mere trespassers, and other petty offenders.^ The last part of the description of larceny at the com- mon law is, that the goods must be personal. Land, or anything that is adhering to the soil or to the freehold, cannot in one transaction be made the subject of larceny. But if anything of this kind is, at one time, separated from the freehold, so as to become a chattel j and is, at 1 1 Haw. 90. 2 Kel. 31. 1 Haw. 93. 3 4 Bl. Com. 232. 382 LECTURES ON LAW. another time, taken and carried away ; larceny is now- committed.^ In different nations, and in the same nation at different times, larceny or theft has received very different punish- ments. It would be tedious minutely to recite them. On no subject has there been more fluctuation in the criminal laws both of Greece and Rome. Seldom, however, was larceny punished capitally at Athens ; never among the Romans. In the early part of the Anglo-Saxon period in England, theft of the worst kind did not expose the thief to any corporal punishment. But the compensation which he was obliged by law to make, rendered larceny a very unprofitable business when it was detected. Ina, the king of Wessex, declared stealing to be a capital crime ; but allowed the offender or his friends to redeem his life, by paying the price at which it was valued by the law.^ The distinction between punishing theft as a crime, and exacting compensation for it as an injury, is strongly marked in a law of Howel Dha, the celebrated legislator of Wales : " If a thief is condemned to death, he shall not suffer in his goods ; for it is unreasonable both to exact compensation, and to inflict punishment." In the ninth year of Henry the First, larceny above the value of twelve pence was, in England, made a capital crime, and continues so to this daj' ; and, in a vast num- ber of instances, it is, by modern statutes, deprived of the benefit of clergy. These statutes, says Mr. Eden, are so complicated in their limitations, and so intricate in their distinctions, that it would be painful, on many accounts, to attempt the detail of them. It is a melancholy truth, but it may, without exaggeration, be asserted, that, ex- clusive of those who are obliged by their profession to be conversant in the niceties of the law, there are not ten subjects in England, who have any clear conception of the » 1 Haw. 93. 2 2 Henry, 290. OF CEIMES AGAINST THE EIGHTS OF INDIVlDtJALS.383 several sanguinary restrictions, to which on this point, they are made liable.^ By a law of the United States, larceny is punished with a fine not exceeding the fourfold value of the prop- erly stolen, and with public whipping not exceeding thirty-nine stripes.^ In Pennsylvania, a person convicted of larceny to the value of twenty shillings and upwards, shall restore the goods or pay their value to the owner, sliall also forfeit to the commonwealth the value of the goods, shall undergo a servitude for any term not exceed- ing three years, and shall be confined and kept to hard labor: a person convicted of larceny under twenty shil- lings, shall restore the goods or pay their value to the owner, shall forfeit the same value to the commonwealth, shall undergo a servitude not exceeding one year, and shall be confined and kept to hard labor .^ Forgery and larceny seem to be the only crimes against the right of private property known to the common law. Robbery is generally classed among the crimes against the right of private property ; but somewhat improperly, in my opinion. Robbery receives its deep dye from out- rage committed on the person ; but as property also enters into the description of this crime, I shall consider it here. Robbery, at the common law, is a violent and felonious taking from the person of another, of money or goods to any value, putting him in fear.* From this description it appears, that to constitute a robbery, the three following ingredients are indispensable : 1. a felonious intention, or animus furandi. 2. Some degree of violence and putting in fear. 3. A taking from the person of another. 1. There must be a felonious intention to steal : lar- ceny is a necessary, though by no means the most impor- 1 Eden, 289. ' Laws U. S. 1 cong. 2 sess. c. 9, s. 16. » 2 Laws Penn. 803, as. 3, 4. ♦S Ins. 68. 1 Haw. 95. 384 LECTURES ON LAW. tant ingredient, which enters into the composition of a robbery. The circumstances which are calculated and proper to evince this felonious intention, it is impossible to describe or recount : they must, in this as in other crimes, be left to the attentive consideration of those, by whom the person accused is tried. The value, however, of the property on which the larceny is committed, is, as to the robbery, totally immaterial. In this respect, a penny is equivalent to a pound.^ 2. There must be some degree of violence and putting in fear. This indeed is the characteristic circumstance, which distinguishes robbery from other larcenies. If one assault another with such circumstances of terror as put him in fear, and he, in consequence of this fear, deliver his money ; this is a sufficient degree of violence ; for he was put in fear by the assault ; and gave his money to escape the danger.^ To constitute a robbery, it is suffi- cient that the force used be such as might create an ap- prehension of danger, or oblige one to part with his prop- erty against his consent. Thus if a man be knocked down without any previous warning, and stripped of his money while he lies senseless; this, though he cannot strictly be said to be put in fear, is undoubtedly a rob- bery.* 3. There must be a taking from the person of another. The thief must be in the possession of the thing stolen. If he go even so far as to cut the girdle, by which a purse hangs, so that it fall to the ground ; yet if he do not take it up, he has not completed the robbery, because the purse was not in his possession.* The taking must be from the person ; but this part of the description is answered, not only by taking the money out of one's pocket, or forcing from him the horse on which he actually rides, but by » 3 Ins. 69. aiHaw. 96, P7. SFost. 128. 4 Bl. Com. 242. «3 Ins. 69. OF CEIMES AGAINST THE EIGHTS OF INDIVIDUALS. 385 taking from him, openly and before his face, anything which is under his immediate and personal care and pro- tection. If one, wishing to save his money, throw it into a bush, and the thief take it up ; this is a taking from the person.* We are told by Mr. Selden, that before the conquest, robbery was punished differently, by the different nations who came from the continent of Europe. By the Saxons, it was punished with death : by the Angles, and by the Danes, it was punished only with iine.^ After the con- quest, these different laws were settled by the Normans iu the more merciful way ; and if the delinquent fled, his pledge satisfied the law for him. But in the times of Henry the First, the law was again reduced to the punish- ment of this crime by death : and so it has contiuued ever since.* In the ancient laws of Wales, it is expressly declared, that robbery shall never be punished with death; "be- cause (say these laws) it is a sufficient satisfaction for this crime, if the goods taken be restored, and a fine paid to the person from whom they were taken, according to his station, for the violence offered him, and another to the king for the breach of the peace." * Robbery by a law of the United States, is punished capitally.^ By a law of Pennsylvania, a person convicted of robbery forfeits to the commonwealth his lands and goods, and undergoes a servitude not exceeding ten years, in the jail or house of correction.^ I proceed now to the consideration of two other crimes at the common law, which, though property, as in the case of robbery, enters into their description, yet receive their deep dye from outrages against personal security. » 3 Ins. 69. 1 Haw. 96. « gac. on Gov. 63. » Id. 88. ♦2 Henry 292. 'Laws U. S, 1 cong. 2 sess. c. 9, s. 8. •2 Laws Penn. 802, s. 2. 25 386 LBCTUEES ON LAW. This cannot be enjoyed without a legal guard around the residence of the person. " A man's house is his castle " was the expression, in times rude and boisterous, when the idea of security was found only on its association with the idea of strength ; and in such times, no expression more emphatical could have been used. In happier times, when the blessings of peace and law are expected and due — in such times, a man's house is entitled to an appellation more emphatic still — in such times, a man's house is his sanctuary. "' Quid enim sanctius, quid omni religione munitius, quam domus uniuscujusque civium?"^ Into this sanctuary, the law herself, unless upon the most urgent emergencies, presumes not to look or enter. We have seen, on many occasions, with what a delicate — I may add, with what a respectful — reserve, she treats the near and dear domestic connec- tions. We maj' well suppose, that she will guard, with peculiar vigilance, the favored spot in which a family re- side. Even those who endeavor clandestinely to pry into its recesses — such are ^ eavesdroppers — receive her repre- hension : and unless the peace or security of the public require it, she will not suffer its doors to be broken, to execute even her own imperial mandates. When she thus solicitously protects the residence of a family from inferior insults, we may rely, that she will zealously defend it from atrocious crimes. Such are arson and burglary. Arson is a felony at common law, in maliciously and voluntarily burning the house of another.^ This is not intended merely 6i the dwelling house itself, but extends to the outhouses ; as the barn, the stable, the cow house, the dairy house, the mill house, the sheep house ; which are parcel of the mansion house.* This crime may be committed by wilfully burning one's 1 Cic. pro dom. 41. 2 4 Bl. Com. 169. » 3 Ins. 66. 1 Haw. 105. « Ins. 67. OP CRIMES AGAINST THE EIGHTS OF INDIVIDUALS. 387 ■own house, if the house of another is also burnt ; but if no mischief is done to that of another, it is not felony, though the fire was kindled with an intention to burn the house ■of that other.^ But if the intention is to burn the house ■of another person, and by the burning of this the house of a third person is also burned ; the burning of the house of this third person is felony ; because the pernicious event shall be coupled with the felonious intention.^ Neither the mere intention to burn a house, nor even an actual attempt to burn it, by putting fire to it, will, if no part of it be burnt, amount to felony ; but if any part of the house be burnt, it is arson, though the fire afterwards go out of itself, or be extinguished.^ No misfortune, nor ■even culpable negligence or imprudence, will amount to arson : it must be voluntary and malicious. A person, by shooting with a gun, set fire to the roof of a house ; this was determined not to be felony.* Arson is a crime of deep malignity. The object of other felonies against the right to propeuty, is merely to give it a new master ; the object of arson is to destroy it — to lose it to societj'-, as well as to its owner. The confusion and terror which attend arson, and the continued apprehension which follows it, are mischiefs frequently more distressing than even the loss of the property. The crime of arson was one of the very few punished ■capitally by the Saxon law. In the reign of Edward the T'irst, those who perpetrated this crime were burnt, that they might suffer in the same manner, in which they had been criminal.^ This crime is also one of the very few still punished capitally in Pennsylvania.^ 1 3 Cro. Car. 376. = 3 ing. 67. ^ 1 Haw. 106. ■• 1 Hale, P. C. 569. ^ 1 Reev. 485. » 1 Laws Penn. 137-476. ' By an act of assembly passed 22d April, 1794, arson is punished "by imprisoment at hard labor, for a period not less than five, nor more than twelve years. 8 Laws Penn. 600. — Ed. 25 388 LECTURES O^f LAW. Burglary is a felony at the common law, in breaking and entering, by night, the mansion house of another, with intent to commit a felony.^ There have been some opinions, that this crime, on a construction of the phrase " by night," may be committed- at any time after the setting and before the rising of the sun ; because the day was deemed to begin at the end, and to end at the beginning of those times ; but the later- and better opinion is, that if there be daylight enough to discern the countenance of a man when the crime is com- mitted, it cannot amount to a burglary.* To a burglary it is necessary, that the house be bothi broken and entered. The breaking must be actual, and not merely such as the law implies in every unlawful en- try on the possession of another. To open a window ; to unlock the door ; to break a hole in the wall ; to enter an open door and unlatch a chamber door ; to come down the chimney ; to knock at the door and rush in when it is opened ; to gain admittance by ai; abuse of legal process, or by the means of a conspiring servant ; all these are ac- tual breaches. The least degree of entry with any part of the body, or with an instrument held in the hand, or even a load discharged from a gun, is suflficient to satisfy^ that en^ry, which the law deems necessary to constitute the crime of burglary.* In a dwelling house only a burglary can be committed. But a house in which one sometimes resides, and has left with an intention to return ; a house which one has hired,, and into which he has brought part of his goods, though he has not lodged in it ; a chamber in a college ; a room occupied in a private house bj' a lodger ; the out-houses adjoining to the principal house ; all these are mansion houses within the meaning of the law.* A shop may be- 1 3 Ins. 63. 1 Haw. 101. 2 1 Haw. 101. » 1 Haw. 103. ♦ 3 Ins. «4. 1 Haw. 103, 104. 4 Bl. Com. 226. OF CRIMES AGAINST THE RIGHTS OF mBIVIDTTALS. 389' parcel of a mansion house ; but if it is severed by a lease to one who works in it by day only, and does not lodge in it, it is not burglary to break and enter it in the night- time.' To a burglary, an intention to commit some felony, and not merely a trespass, is indispensable ; but, as was shown on another occasion,' it is not necessary that the felony intended be committed; and it is immaterial whether that felony be by common or by statute law.' By the law of Athens, burglary was a capital crime.* Among the Saxons also, hurgessours were to be punished with death;* In Pennsylvania, burglary and robbery re- ceive precisely the same punishment.' The punishment for robbery has been already mentioned. I Wood Ins. 388. 2 Ante, p. 358. 3 4 Bl. Com. 237. * 1 Pot Ant. c. 26. s 1 Reev. 485. 6 3 Laws Penn. 802, s. 3. CHAPTER III. OP CRIMES AGAINST THE EIGHT OF INDIVrDIJALS TO LIBBETY, AND TO EEPTJTATIOK. Liberty, as we have seen on former occasions, is one of the natural rights of man ; and one of the most important of those natural rights. This right, as well as others, may be violated ; and its violations, like those of other rights, ought to be punished, in order to be prevented. Yet these violations are scarcely discernible in our code of criminal law. This we must ascribe to one of two causes. Either this right has been enjoyed inviolably : or the law has suffered the violations of it to escape with shameful impunity. The latter is the truth : I am compelled to add, that the latter, bad as it is, is not the whole truth. Violations of liberty have not only been overlooked : they have also been protected ; they have also been encouraged ; they have also been made ; they have also been enjoined by the law. I speak this not only concerning the statute law ; I am compelled to speak it also concerning the common law of England : I speak this not only concerning the law as it was received in the American States before their revolu- tion ; I am compelled to speak it also concerning the law as it is received in them still : I speak this not only con- cerning the law as it is received generally in the other sister states ; I am compelled to speak it also concerning the law as it is received in Pennsylvania : nay, I am 390 OF CRIMES AGAINST THE EIGHTS OF INDIVIDUALS. 391 farther compelled to speak it also of the law as it is recently received in our national government. Our public liberty we have indeed secured ; — esto per- petua — But, notwithstanding all our boasted improvements — and they are improvements of which we may well boast — the most formidable enemy to private liberty is, at this moment, the law of the land. In some former parts of my lectures,^ I have had occasion to remark, and I have remarked with pleasure, that solici- tous degree of attention which the law gives to personal security. Its most distant avenues are watchfully guarded. To decide questions, by which it may be affected in the highest, or even in inferior degrees, I have shown, in a sublime part of our system, to be the incommunicable pre- rogative of sovereignty or selected sovereignty itself. I have shown, that, by an operation inexpressibly fine, per- sonal safety never sees the arm which holds the sword of justice, but at the moment when it is found necessary that its stroke should be made. Inferior to personal safety only, if indeed inferior even to that, is the consideration of per- sonal liberty. And yet, while personal safety can be authoritatively affected only by the community, or a body selected from the community impartially and for the occa- sion, the law implicitly, causelessly, unconditionally, and continually prostrates: personal liberty at the feet of every wretch who is unprincipled enough to trample upon it. I say, unprincipled ; because a citizen, who has principle, will not wound it by using the authority of the law. In every state of the union — in every county of every state, there are shops opened, nay licensed, nay established by the law, at which its authority may be purchased, for a trifle, by the worst citizen, in order to infringe the personal liberty of the best. From the disgrace of these enormities against the rights 1 Ante, vol. 2, p. 2.31, et seq. 392 LECTURES ON LAW. of liberty, I gladly rescue the character and principles of the common law. The history of the several processes of capias, and orders and rules of commitment will show, when we come to it, that this part of our municipal law is of statute original ; and that it was produced in the darkest and rudest, though its existence has continued in the most enlightened and the most refined times. With another part of these enormities against the rights of liberty, however, impartiality obliges me to charge the common law. Man is composed of a soul and of a body. To mental as well as to bodily freedom, he has a natural and an unquestionable right. The former was grossly violated by the common law. Witness the many over- grown titles, by which the volumes of the law are still dis- tended: witness, in particular, the customs de modo deci- mandi, and the writs de excommunicato capiendo and de heretico comhurendo.^ These parts I only mention ; because from these parts we are happily relieved ; they are parts of the common law, which did not suit those who emigrated to America : they were, therefore, left behind them. But, in some respects, private liberty is still the orphan neglected ; in others, she is still the victim devoted by our municipal law. So inveterate, indeed, is the vice of the law in this particular, that it has infected its very language. The terms', which denote the diminution or the destruction of personal safety — homicide, wounding, battery, assault — are all prima facie understood in an unfavorable meaning ; though they are sometimes excused, or justified, or even enjoined, as well as sometimes prohibited and punished by the law : but to iraprisoment, the idea of legal authority seems, in legal understanding, to Xk prima facie annexed: and when it speaks of the unauthorized kind, it is obliged to distinguish it by adding the epithets faise or unlav^ul. But legislators should bear in their minds, and should ' 4 BI. Com. 46. OP CRIMES AGAINST THE RIGHTS OF INDIVIDUALS. 393 practically observe — and well persuaded I am, that our American legislators bear in their minds, and, whenever the necessary resettlement of things after a revolution can pos- sibly admit of it, will practically observe, with regard to this interesting subject — the following great and important political maxim : — Every wanton, or causeless, or unneces- sary act of authority, exerted or authorized, or encouraged by the legislature over the citizens, is wrong, and unjusti- fiable, and tyrannical : for every citizen is, of right, entitled to liberty, personal as well as mental, in the highest pos- sible degree, which can consist with the safety and welfare ■of the state. " Legum " — I repeat it — " servi sumus, ut liheri esse possimus." In the course of my future investi- gations into this point, I shall be able to evince, in the ■clearest manner, that our municipal regulations concerning it are not less hostile to the true principles of utility, than they are to those of the superior law of liberty. Having made these preliminary observations on a sub- ject, which so greatly needs, and so richly deserves them, I proceed to search the little that is said in some of our systems of criminal law — in others nothing is said — con- cerning it. False imprisonment is punishable by indictment, like assaults and batteries ; and the delinquent may be fined and imprisoned.^ Thus much concerning the crime of violating the per- sonal liberty of man. Reputation, except that of official characters, seems not, of late times, any more than personal liberty, to have a.t- tracted the distinguished regard of our public law : and even when it deigns a little degree of regard to it, that regard flows from a wrong principle, and is referred to a wrong end. Libels are considered as objects of public cognizance, not because the character, but because the » 4 Bl. Com. 213. 2 Haw. 90. 394 LECTURES ON LAW. tranquillity of the citizens is precious to the public ; and therefore, crimes of this nature are classed and prosecuted and punished as breaches of the peace, and as much re- sembling challenges to fight.* But it was not always so. I said, on a former occasion,^ that robbery itself does not flow from a fountain more rankly poisoned, than that which throws out the watera of calumny and defamation. In say- ing so, I was warranted by authority respectable and an- cient. By the laws of the Saxons, the felon, who robbed, was punished less severely than the wretch who calum- niated. By a law, made, towards the end of the seventh century, by Lothere, one of the kings of Kent, a calum- niator was obliged to pay one shilling to him in whose house or lands he uttered the calumny. It was conceived, it seems, to diffuse a degree of contamination over things inanimate. He was obliged to pay six shillings to the person whom he calumniated, and twelve shillings to the king. When we recollect, that, long after this time, a shilling could purchase a fatted ox ; we may judge con- cerning the 'light, in which defamation was viewed at this time. But Edgar the peaceable, who flourished about two centuries afterwards, made, against this crime, a law much more severe : it decreed, that a person convicted of gross and dangerous defamation should have his tongue cut out, un- less he redeemed it by paying his full were, as it was called,, or the price of his life. This law was confirmed by Canute the Great.^ By the laws of Egypt, a defamer was condemned to the same punishment, which would have been inflicted on the defamed, if the defamation had been true.* Solon, in one of his laws, ordained, that a delinquent in slander should make reparation in money to the party injured ; and should also pay a fine into the public treasury.* '* 4 Bl. Com. 150. " Vol. 2, p. 314. » 2 Henry, 293.. * 1 Gog. Or. L. 58. s i pot. Ant. 179. OF CRIMES AGAINST THE EIGHTS OF INDIVIDUALS. 395 A libel may be described — a malicious defamation of any person, published by writing, or printing, or signs or pictures, and tending to expose him to public hatred, con- tempt, or ridicule.^ It is clearly a crime at the common law.2 It has been often observed in the course of these lectures, that one extreme naturally produces its opposite. An un- warrantable attempt made in the Star Chamber, during the reign of James the First, to wrest the law of libels to the purposes of ministers, and an effort continued ever since to carry that attempt into execution, and even to go beyond some of its worst principles, have, in England, lost to the community the benefits of that law, wise and salu- tary when administered properly, and by the proper persons. The decision in that case has ever since been considered, in England, as the foundation of the law on this subject. It will be proper, therefore, to examine the parts of that decision with some degree of minuteness. The libel, prosecuted and condemned, was a satirical ballad on a deceased archbishop of Canterbury and his liv- ing successor.* The first resolution is, that a libel against a magistrate, or other public person, is a greater offence than one against a private man. This, in the unqualified manner here ex- pressed, cannot be rationally admitted. Other circum- stances being equal, that of office ought to incline the beam, if the libel refer to his official character or conduct ; because an officer is a citizen and more. But a libel of one kind against a private citizen, may certainly be more atrocious, and oE example more atrociously evil, than a libel of another kind against a public officer. Another and a more important resolution in that case is — that it is immaterial whether the libel be false or true. This resolution is clearly extrajudicial, because it appears, 11 Haw. 193. "■ 3 Ins. 174. '5 Eep. 125 a. -396 LECTURES ON LAW. from the state of the case, that the author of the libel was proceeded against on his own confession. The rule, how- ever, has been followed by more modern determinations; -and reasons have been offered to support it on the princi- ples of law. The provocation and not the falsity, says Sir William Blackstone, is the thing to be punished criminally. In a civil action, he admits, a libel must appear to be false as well as scandalous ; for, if the charge be true, the plaintiff has received no private injury, and has no ground to demand a compensation for himself, whatever offence it may be against the public peace ; and, therefore, upon a civil action, the truth of the accusation may be pleaded in bar of the suit. But in a criminal pTosecution, tlm i;endency which all libels have to create animosities, and to disturb the public peace, is the sole consideration of the law.^ Upon this passage, I observe, in the first place, that a libel is a violation of the right of character, and not of the right of personal safety. It is no wonder if the reasonings •on this crime are inaccurate, when its ver}"^ principle is mistaken. I observe, in the second place, that these inaccurate reasonings are attempted to be established by a gross in- consistency. When they refer to the effects of the libel, they suppose the tendency to produce disturbances of the peace : when they refer to the causes of the libel, they say to him who is actuated by them — you ought, in a settled government, to complain for every injury in the ordinary course of law, and by no means to revenge yourself.^ Why is not this advice given consistently, to the person provoked by the libel ? If he has received an injury — if on that injury a crime is superinduced ; the law will repair the former, and punish the latter ; if no injury has been, sustained, no foundation has been laid for a crime. » 4 Bl. Com. 150. a 5 Bep 125 b. OF CRIMES AGAINST THE RIGHTS OF INDIVIDUALS. 397 I observe, in the third place, that Sir William Black- «tone here seems not to have been sufficiently attentive to a principle, which he properly subscribes in another part of his Commentaries : ^ the crime includes an injury : every public offence is also a private wrong, and somewhat more : it affects the individual, and it likewise affects the community. The only points, it is said, to be considered in the prose- cution for a libel, are, first, the making or publishing of the book or writing : secondly, whether the matter be criminal.^ On the last of these two points, a celebrated contro- versy has subsisted between judges and juries ; the former claiming its decision as a question of law ; the latter claim- ing it as a question of fact, or, at least, necessarilj' involved in the decision of a question of fact. After what I have said, in a former lecture,^ concerning the general duties and powers of juries, you will be at no loss to know my sentiments on this controverted subject. I only re- mark, at present, that if a libel be, as I think it is, a crime against the right of reputation ; the trial on a libel must be the trial of a character, or some part of a character. Of all questions, almost, which can be proposed, I think this the most remote from a question of law. The constitution of Pennsylvania has put this matter upon an explicit footing, consonant, or nearly consonant in my opinion, to the true principles of the common law ; " in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases." * The punishment of a libel is a fine, or a fine and corpo- ral punishment.* 1 4 Bl. Com. 5. 2 Id. 151. » Vol. 2, p. 189, et seq. ♦ Art. 9, s. 7. '1 Haw. 196. CHAPTER IV. OF CKIMES AGAINST THE PaGHT OF INDIVIDtTALS TO PERSONAL SAFETY. The crimes which are next to be enumerated and con- sidered are those against the right of personal safety. On this subject, the common law has been peculiarly accurate and attentive. An assault is an attempt or offer, with force and vio- lence, to do a corporal hurt to another ; as by striking at him ; by holding up the fist at him ; by pointing a pitch- fork at him, if he be within its reach ; by presenting a gun at him, if he be within the distance to which it will carry ; or by any other act of a similar kind, done in an angry and threatening manner.* An assault is violence incho- ate.^ A battery is violence completed , by beating another. Any injury done to the person of a man, in an angry, or revengeful, or rude, or insolent manner, as by touching him in any manner, or by spitting in his face, is a battery in the eye of the law.^ In that eye, the person of every man is sacred : between the different degrees of violence it is impossible to draw a line : with great propriety, there- fore, its very first degree is prohibited.* Wounding is a dangerous hurt given to another ; and is an aggravated species of battery.* 1 1 Haw. 133. ^ 3 Bl. Com. 120. 3 1 Haw. 134. * 3 Bl. Com. 130. » Id. 121. 398 OF ClUMES AGAINST THE RIGHTS OF INDIVIDUALS. 399 These offences ,nlay unquestionably be considered as private injuries, for which compensation ought to be de- creed to those who suffer them. But viewed in a public light, they are breaches of the public peace : as such they may be prosecuted ; and as such they may be punished. The punishment is fine, or fine and imprisonment.* A battery or an assault, violence or, an offer of violence, is susceptible of deep criminality from the atrocious inten- tion, with which it is sometimes offered or done. An as- sault with a design to murder, to perpetrate the last out- rage upon the honor of the fair sex, or to commit the crime which ought not to be even named — these are in- stances of what I mention : in these instances, to a heavy fine and imprisonment, it is usual to add the judgment of the pillory .2 Assaults, batteries, and woundings may be sometimes ex- cused, and sometimes justified. The particular cases in which this may be done, will be explained with more pro- priety, when we come to consider them as private injuries, and not as public offences. Affrays are crimes against the personal safety of the' citizens ; for in their personal safety, their personal security and peace are undoubtedly comprehended. An affray is a fighting of persons in a public place, to the terror of the citizens. They are considered as common nuisances. They may, and ought to be suppressed by every person present ; and the law, as it gives authority, so it gives protection, to those who obey its authority in suppressing them, and in apprehending such as are engaged in them ;. if by every person present ; then still more strongly by the officers of peace and justice.^ In some cases, there may be an affray, where there is no actual violence ; as where a man arms himself with dangerous and unusual weapons, in J 1 Haw. 134. 4 Bl. Com. 217. « 4 Bl. Com. 21V. » 3 Ins. 158. 4B1. Com. 143. 400 LECTtTKES ON LAW. such a manner, as will naturally diffuse a terror among- the people.^ To challenge another, by word or letter, to fight a duel, or to be the messenger of such a challenge, or to provoke, or even to endeavor to provoke, another to send such a chal- lenge, is a crime of a very high nature, and is severely reprehended by the law : ^ duels are direct and insolent contempts of the justice of the state.^ Affrays are punished by fine and imprisonment, the measure of which must be regulated by the circumstances of the case.* For sending a challenge, the offenders have been adjudged to pay a fine, to be imprisoned, to make a public acknowledgment of their offence, and to be bound to their good behavior. It cannot have escaped your observation, with what a, judicious mixture of poignant contempt the common law seasons its indignation against those, who are so lost tO' true sentiment as to deem it honorable to insult the justice of their country. They are not treated as criminals of dignity : they are considered in the very degraded view of 'common nuisances : the putrid offals of the shambles are viewed, as we shall see, in the same light. Neither can it have escaped your observation, with what a deep knowledge of human nature, the common law traces- and pursues duels to what is frequently their cowardly as well as their cruel source. Many are vain and base enough to wish and aspire at that importance, which, in their perverted notions, arises from being even the second in a quarrel of this nature, who have not spirit enough to- face that danger, which arises from being the first, tience often the officious and the insidious offers of friendship, as it is called, on these occasions, by those who, with hearts pusillanimous and malignant, inflame, instead of endeavor- 1 1 Haw. 135. » 3 Ins. 158, 1 Haw. 135. » 1 Haw. 138. < Id. ibid. OF CRIMES AGAINST THE KIGHTS OF INDIVIDXIALS. 401 ing, as those possessed of bravery and humanity would endeavor, to extinguish an unhappy dispute — a dispute,, perhaps, unpremeditated as well as unhappy — regretted- its well as unintended by the immediate parties — and tO' rescue them from the consequences of which, without any violation of tlifi rules of true honor, and even without any departure from the rules of false honor, which every on& has not the calm courage to violate, nothing is wanting but a conduct diametrically opposite to that of these pre- tended. friends — a conduct which will prevent extremities, without wounding a sentiment which, without necessity, ought not to be wounded, because it is delicate though it be mistaken. Animated with a just degree of blended resentment and' disdain against the conduct first described, the common law wisely and humanely extends disgrace and censure and punishment to those who provoke, even to those whO' endeavor to provoke, another to send a challenge. On the same principles on which affrays are prohibited and punished, riots, routs, and unlawful assemblies are- also prohibited and punished bj' the common law. Two persons may commit an affray; but to a riot, a rout, or an unlawful assembly, three are necessary. A riot is a tum,ultuous disturbance of the peace by pei'sons unlawfully assembled with a view to execute, and actually executing, some unlawful act, in a violent and turbulent manner, to- the terror of the people.^ A rout is a riot unfinished ; and is committed by persons unlawfully assembled with a view to execute, and actually making a motion to execute, an unlawful act, the execution of which would render the riot complete. An unlawful assembly is an unfinished rout ; and is committed by persons unlawfully assembled with a view, but without actually making a motion, to execute an unlawful act, to the execution of which, if 1 1 Haw. loo. Salk. 594. 3 Ins. 176. 402 LECTUKKS ON LAW". they had made an actual motion, the}' would have been guilty of a rout.^ The punishment of these offences, at the common law, has generally been by fine and imprison- ment only : cases, however, very enormous have been punished by the pillory also.* Mayhem is a crime committed by violently depriving one of the use of any part of his body, by losing the use of which he becomes less able, in fighting, to annoy his adversary or to defend himself.^ This is an atrocious breach of the public peace and secuiity. By it, one of the citizens is disabled from defending himself; by it, his fellow citizens are debarred from receiving that social aid which they are obliged to give ; by it, the state loses those services, which it had a right to exact and expect. In ancient times, this crime was punished according to the law of retaliation : it is now punished with fine and im- prisonment.* The forcible abduction or stealing of a person from his country, is a gross violation of the right of personal safety. To tliis crime the term kidnapping is appropriated by the law. It robs the state of a citizen ; it banishes the citizen from his country ; and it may be productive of mischiefs of, the most lasting and humiliating kind. By the common law, it is punished with fine, with imprisonment, and with the pillory.* A rape is an irreparable and a most atrocious aggression on the right of personal safety. Besides the thousand excruciating, but nameless circumstances by which it is aggravated, some may be mentioned with propriety. It is a crime committed not only against the citizen, but against the woman ; not only against the common rights of society, but against the peculiar rights of the sex : it is committed by one from whom, on every virtuous and 1 1 Haw. 158. 2 Id. 159. s j Haw. 111. * 4 Bl. Com. 206. ' Id. 219. OF ClUMES AGAINST THE KIGHTS OF INDIVIDUALS. 403 anaul}^ principle, her sex is entitled to inviolable protection, iind her honor to the most sacred regard. This crime is one of the selected few, which, by the laws of the Saxons, were punished with death. The same punishment ^ it still undergoes in the commonwealth of Pennsylvania.^ On this subject, for an obvious reason, particular observations -will not be expected from a lecture in the hall : they are fit for the book and the closet only : for even the book and the closet they are fit, only because they are neces- sary. The crime not to be named, I pass in a total silence. T now proceed to consider homicide, and all its different species. Homicide is tlie generical term used by the law to denote every human act, by which a man is deprived of his life. It may be arranged under the following divis- ions — enjoined homicide — justifiable homicide — homicide by misfortune — excusable homicide — alleviated homicide — malicious homicide — treasonable homicide. I. 1. Homicide is enjoined, when it is necessary for the ■defence of the United States, or of Pennsylvania. At present, it is not necessary for me, and, therefore, I decline to examine the general and very important subject con- cerning the rights of war. I confine myself merely to that kind of war, which is defensive : and even that kind I now consider solely as a municipal regulation, established by the constitution of the nation, and that of this com- monwealth. The constitution of the nation is ordained to " provide for the common defence." In order to make " provision " for that defence, congress have the power to "provide for arming the militia," and " for calling them forth," 1 1 Laws Penn. 135. 2 By the act of assembly of 22d April, 1794, the punishment of this crime is changed into imprisonment at hard labor, for a period not leas than ten, nor more than twenty-one years. 3 Laws Penn. 600. Ed. .26 404 LECTXJEES OX LAW. " to repel invasions : " they have power " to provide a. navy," " to raise and support armies," " to declare war.""^ Whenever the primary object, " the common defence," ren- ders it necessary, the power becomes the duty of congress : and it requires no formal deduction of logic to point to the duty, when necessity shall require, of military bodies, " raised, supported, and ai-med." In Pennsylvania, it is explicitly declared upon the very point, that " the freemen of this commonwealth shall be armed for its defence." ^ 2. Homicide is enjoined, when it is necessary for the defence of one's person or house. With regard to the first, it is the great natural law of self-preservation, which, as we have seen,^ cannot be repealed, or superseded, or suspended by any human in- stitution. This law, however, is expressly recognized in the constitution of Pennsylvania.* "The right of the citizens to bear arms in the defence of themselves shall not be questioned." This is one of our many renewals of the Saxon regulations. " They were bound," says Mr. Selden, " to keep arms for the preservation of the king- dom, and of their own persons." ^ With regard to the second ; every man's house is deemed,, by the law, to be his castle ; and the law, while it invests- him with the power, enjoins on him the duty, of the com- manding officer. " Every man's house is his castle," says my Lord Coke, in one of his reports, " and he ought to keep and defend it at his peril ; and if any one be robbed in it, it shall be esteemed his own default and negligence." ^ For this reason, one may assemble people together in order to protect and defend his house.'' 3. Homicide is frequently enjoined by the judgment of courts agreeably to the directions of the law. This is the 1 Cons. U. S. art. 1, s. 8. " Cons. Penn. art. 6, s. 2. 'Ante, vol. 2, p. 335. * Art. 9, s. 21. = Bacon Gov. 40.. « 7 Eep. 6. ' 1 Hale P. C. 547. 4 Bl. Com. 223. OF CRIMES AGAINST THE EIGHTS OF INDIVIDUALS. 40i5 case in all capital punishments. This species of liomicid^ is usually classed with those kinds which are justifiable. The epithet is true so far as it goes. But it goes not far enough to characterize the conduct of the officer to whom it relates. One may be justifiable in doing a thing, in omitting to do which he may be equally justified. But this is not the case with a sheriff, or other ministerial officer of justice. He is commanded to do execution. II. As homicide is enjoined, when a sentence of death is to be executed ; so it is sometimes justified in the execu- tion of other process from the courts of justice. When per- sons, who have authority to arrest, and who use the jsroper means for that purpose, are resisted in doing so, and the party making resistance is killed in the struggle"; this homicide is justifiable.^ If a person, who interposes to part the combatants in an affray, and gives notice to them of his friendly intention, is assaulted by any of them, and, in the struggle, happens to kill; this is justifiable homi- cide. For, in such cases, it is the duty of every man to interpose, that mischief may be prevented, and the peace may be preserved. This rule is founded in the principles of social duty .2 If a woman, in defence of her honor, kill him who attempts the last outrage against it; this homicide is justifiable.^ In the same manner, the husband or father may justify the killing of one, who makes a similar attempt upon his daughter or wife.* In these instances of justifiable homicide, the person who has done it is to be acquitted and discharged, with commendation rather than censure.^ III. Homicide by misfortune happens, when a man, in the execution of a lawful act, and without intending any harm, unfortunately kills another.® The act must not 1 Eden. 209. Fost. 270. 1 Hale, P. C. 494. i" Post. 272. Eden. 209. ^post. 274. Eden. 210. *4B1. Com. 181. n&. 182. Fost. 279. ePost. 268. 406 LECTURES ON LAW. only be lawful, but must also be done in a lawful manner. If a master, correcting his servant moderately, happens to occasion his death, it is only misadventure ; for the act of correction was lawful : but it is much otherwise, if he ex- ceed in the manner, the instrument, or the quantity of the correction.^ This species of homicide, if found by a jury, still, in strict law, as it is received in England, subjects the un- fortunate — I cannot call him the guilty — party, to a for- feiture of his personal estate ; or, as some say, only a part of it. He has, it is true, his pardon, and a writ for restor- ing his goods, as a matter of course, when he pays the fees for them.2 Sir William Blackstone seems to make an apology for this forfeiture, by observing, that, in the case of homicide by misadventure, the law presumes negligence, or, at least, a want of sufficient caution, in him who was so unfortunate as to commit it ; who, therefore, is not altogether faultless.^ The law itself is severe in this in- stance — confessedly so : but the apology for it seems to be founded on a principle, rigorous and totally inadmis- sible. Shall the unfortunate be necessarily viewed as also incautious ? Shall negligence be presumed by the law, when misadventure has been found by the jury? No. The doctrine is inadmissible. It is rigorous. Accidents of this lamentable kind may be the lot of the wisest and most cautious, and of the best and most humane among men : they most frequently happen among those who are relations or friends ; because those associate most fre- quently together. In such cases, to ascribe the calamity to a conduct "not altogether faultless;" to "presume negligence," when nothing existed but bitter misfortune, would, indeed, be to " heap affliction upon the head of the U Bl. Com. 182. Fost. 262. 2 4B1. Com. 188. 'Id. 186. OF CRIMES AGAINST THE RIGHTS OF INDIVIDUALS. 407 ivfflicted," and to stab afresh a heart still bleeding with its former wound. It would be to aggravate the loss of even a brother, a parent, a child, a wife ; if of aggravation such a loss, in such circumstances, is susceptible.^ The law itself, in this instance, is, as has been mentioned, severe — confessedly so. The fees of office have probably-, in this as in too many other instances, prevented improve- ment. "I therefore think," to use the expressions of a great master of criminal law, "those judges, who have taken general verdicts of acquittal in plain cases of hom- icide by misfortune, have not been to blame. They have, to say the worst, deviated from ancient practice in favor of innocence, and have prevented an expense of time and money, with which an application to the great seal, though in a matter of course, as this undoubtedly is, must be con- stantly attended." ^ It is proper to observe that this late practice of the judges is mentioned by Sir William Black- stone, in terms which intimate his approbation.^ IV. Excusable homicide is that which, on a sudden affray * between parties, is given in the necessary defence of him who wishes and endeavors to quit the combat. This is carefuUj'^ to be distinguished, because it is mate- rially different, from that kind of self-defence which is justified or enjoined to prevent the perpetration of tlie most atrocious outrage upon one's person or habitation.-^ The species of homicide, which we are now to consider, though excusable by the benignity of the law, is still culpable. It is done, when a person, engaged in a sudden affray, quits the combat before a mortal wound is given, and retreats or flies as far as he can with safety ; and then, urged by mere necessity, kills his adversary for the pres- ervation of his own life.® This species approaches near to manslaughter ; and, in experience, the boundary between I Fost. 264. 2 Fost. 288. 3 Bl. Com. 186. -• Fost. 276. s 4 Bl. Com. 183. « Fost. 275. 408 LECTITEES ON LAW. them is, in some places, difficult to be discerned : it is marked, however, in the consideration of law. In both species, it is supposed that passion has kindled on each side; and that blows have passed between the parties. But in the case of manslaughter, either the combat on both sides continues till the mortal stroke is given, or the partj giving it is not in imminent danger : whereas, in the case of excusable homicide, he who is excused declines, before a mortal stroke given, any further combat, and retreats as far as he can with safety ; and then, through mere neces- sity, and to avoid immediate death, kills his adversarJ^l Though this species of homicide is very different from that which happens by misfortune ; yet the judges, in one as well as the other, permit, if not direct, a general verdict of acquittal.^ ' V. To alleviated homicide, the term manslaughter is appropriated. When the epithet alleviated is applied to this species of homicide, it must be understood only as compared with that which is malicious : for manslaughter, though in this view an alleviated, is a felonious homicide. It is the unlawful killing of another, without malice ; and may be either voluntarily, upon a sudden heat or provo- cation ; or involuntarily, but in the commission of some unlawful act. When manslaughter is voluntary, it is dis- tinguished from excusable homicide by this criterion — that, in the latter case, the killing is through necessity, and to avoid immediate death ; whereas, in the former, there is no necessity at all ; it being a sudden act of revenge. When manslaughter is involuntary, it is distinguished from homicide by misfortune by this criterion — that the latter always happens in consequence of a lawful, the for- mer, in consequence of an unlawful act. Manslaughter, both voluntary and involuntary, is distinguished from 1 Post. 275, 277. 4 Bl. Com. 185. ■= 4 Bl. Com. 188. OP CRIMES AGAINST THE EIGHTS OF INDIVIDUALS. 409 malicious homicide by this criterion — that the latter is with, the former without, malice. In England, manslaughter is punished by burning in the hand, and by the forfeiture of goods and chattels.^ In the United States, it is punished by a fine not exceed- ing one thousand dollars, and by imprisonment not ex- ceeding three years.'^ In Pennsylvania,^ it is punished by a fine at the discretion of the court, and by imprisonment not exceeding two years ; and the offender shall find secu- rity for his good behavior during life. * VI. To malicious homicide the term murder is appro- priated by the law. This name was, in ancient times, applied only to the secret killing of another ; for which the vill or hundred where it was committed was heavily amerced. This amercement was called murdrum. This expression is now applied to the crime ; and the crime is now considered in a very different, and much more ex- tensive point of view, without regarding whether the person killed was killed openly or secretly.^ Murder is the unlawful killing of another with malice aforethought, express or implied.® The distinction, you observe, which is strongly marked between manslaughter ' 4 Bl. Com. 193. '^ Laws U. 8. 1 cong. 2 sess. c. 9, s. 7. ^ 1 Laws Penn. 846. * The punishment of voluntary manslaughter, by the act of 22d April, 1794 (3 Laws Penn. 601, s. 7 ), Is, for the first offence, imprisonment at hard labor, not less than two, nor more than ten years ; and the offender shall be sentenced likewise to give security for his good behav- ior during life, or for any less time, according to the nature and en- ormity of the offencp. For the second offence, he shall be imprisoned as aforesaid not less than six, nor more than fourteen years. In cases of involuntary manslaughter, the prosecutor for the commonwealth may, •with the leave of the court, wave the felony, and charge the person with a misdemeanor ; who, on conviction,' sliall be fined and imprisoned as in ■casesof misdemeanor ; or the prosecutor may charge both offences in the indictment ; and the jury may in such case acquit the party of one, and find him guilty of the other charge. 3 Laws Penn. 601, s. S. Ed. » 4 Bl. Com. 195. ^ 3 ing. 47. 410 LECTURES ON LAW. and murder is, that the former is committed without, the' latter with malice aforethought. It is essential, therefore, to know, clearly and accurately, tihe true and legal import of this characteristic distinction. There is a very great difference between that sense which is conveyed by the expression malice in common language, and that to which the term is appropriated by the law. In common language, it is most frequently used to denote a sentiment or passion of strong malevolence tO' a particular person ; or a settled anger and desire of re- venge in one person against another. In law, it means the dictate of a wicked and malignant heart ; of a de- praved, perverse, and incorrigible disposition. Agreeably to this last meaning, many of the cases, which are arranged under the head of implied malice, will be found to turn upon this single point, that the fact has been attended with such circumstances — particularly the circumstances- of deliberation and cruelty concurring — as betray the plain indications and genuine symptoms of a mind griev- ously depraved, and acting from motives highly criminal ; of a heart regardless of social duty, and deliberately bent upon mischief. This is the true notion of malice, in the legal sense of the word. The mischievous and vindictive spirit denoted by it, must always be collected and inferred from the circumstances of the transaction. On the cir- cumstances of the transaction, the closest attention should, for this reason, be bestowed. Every circumstance may weigh something in the scale of justice. In England, in the United States, in Pennsylvania, and almost universally throughout the world, the crime of wilful and premeditated murder is and has been punished with death. Indeed it seems agreed by all, that, if a cap- ital punishment ought to be inflicted for any crimes, this is unquestionably a crime for which it ought to be in- flicted. Those who think that a capital punishment is- OP CRIMES AGAINST THE EIGHTS OP INDIVIDUALS. 411 enjoined against this crime by the law which is divine, will not imitate the conduct of that Polish monarch, who I'emitted to the nobility the penalties of murdei", in a char- ter of pardon beginning arrogantly thus •* — " Nos divini juris rigorem moderantes, etc." ^ VII. Treasonable homicide is committed by a servant who kills his master, and a wife, who kills her husband. Petit treason is the name appropriated, by the law, to this crime. It arises from the relation which subsists between the person killing and the person killed. The crime which, committed by another, would be murder, is petit treason when committed by the wife, or by a servant. The punishment of this crime, in England, is, that the man is drawn and hanged ; and the woman is drawn and burned.^ By a law * still in force in Pennsylvania, per- sons convicted of this crime, or of murder, shall suffer as the laws of Great Britain now do or hereafter shall direct and require in such cases respectively.^ ' i Bl. Com. 194. -Murder, by the act of 22d April, 1794, is distinguislied into two de- grees. Murdei- of tlie first degree alone is punished with death, and is the only capital crime now known to the laws of Pennsylvania. Mur- der perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary is deemed murder in the first degree. All other kinds of mur- der are deemed murder in the second degree. The punishment of this is imprisonment at hard labor, for a period not less than five, nor more than eighteen years. 3 Laws. Penn. 599, 600, ss. 1, 2, 4. Ed. 3 4 Bl. Com. 204. « 1 Laws Penn. 135. ^ " Every person liable to be prosecuted for petit treason shall in ivu- fure be indicted, proceeded against, and punished, as is directed in other kinds of murder." Act of 22d April, 1794, s. 3. 3 Laws Penn. 600. Ed. CHAPTER V. OF CRIMES, IMMEDIATELY AGAINST THE COMMUNITY. I HAVE hitherto considered crimes, which wound the ■community through the sides of individuals : I now come to consider one which directly and immediately aims a stab at the vitals of the community herself. I mean treason against the United States, and against the state of Pennsylvania. Treason is unquestionably a crime most dangerous to the society, and most repugnant to the first principles of the social compact. It must, however, be observed, that as the crime itself is dangerous and hostile to the state, so the imputation of it has been and may be dangerous and oppressive to the citizens. To the freest governments this observation is by no means inapplicable ; as might be shown at large by a deduction, historical and political, which would be both interesting and instructive. But, at present, we have not time for it. To secure the state, and at the same time to secure the citizens — and, according to our principles, the last is the end, and the first is the means — the law of treason should possess the two following qualities. 1. It should be deter- minate. 2. It should be stable. It is the observation of the celebrated Montesquieu,^ that if the crime of treason be indeterminate, this alone is suf- ficient to make any government degenerate into arbitrary iSp. L. b. 12, c. 7. 412 OF CRIMES, IMMEDIATELY AGAINST THE COMMUNITY. 413 power. In monarchies, and in republics, it furnishes an opportunity to unprincipled courtiers, and to demagogues equally unprincipled, to harass the independent citizen, and the faithful subject, by treasons, and by prosecutions for treasons, constructive, capricious, and oppressive. In point of precision and accuracy with regard to this crime, the common law, it must be owned, was grossly de- ficient. Its description was uncertain and ambiguous ; and its denomination and penalties were wastefuUy communi- cated to offences of a different and inferior kind. To lop off these numerous and dangerous excrescences, and to reduce the law on this important subject to a ■designated and convenient form, the famous statute of treasons was made in the reign of Edward the Third, on the application of the Lords and Commons. This statute has been in England, except during times remarkably tyrannical or turbulent, the governing rule with regard to treasons ever since. Like a rock, strong by nature, and fortified, as successive occasions required, by the able and tlie honest assistance of art, it has been impregnable by all the rude and boisterous assaults, which have been made upon it, at different quarters, by ministers and by judges ; and as an object of national security, as well as of national pride, it may well be styled the legal Gibraltar of Eng- land. Little of this statute, however, demands our minute at- tention now ; as the great changes in our constitutions have superseded all its monarchical parts. One clause of it, indeed, merits our strictest investigation ; because it is transcribed into the constitution of the United States. Another clause in it merits our strongest regard : because it contains and holds forth a principle and an example, ■worthy of our observance and imitation. After having enumerated and declared all the different species of treason, which it was thought proper to estab- 414 LECTURES ON LAW. lisli, the statute proceeds in this manner : " and hecause- many other cases of like treason may happen in time to come, which, at present, a man cannot think or declare ; it is assented, that if any other case, supposed treason, which is not specified above, happen before any judges, they shall not go to judgment in such case ; but shall tarry, till it be shown and declared before the king and his parliament, whether it ought to be judged treason or other felony." The great and the good Lord Hale observes ^ upon this clause, " the great wisdom and care of the parliament, to keep judges within the bounds and express limits of this statute, and not to suffer them to run out, upon their own opinions, into constructive treasons, though in cases which seem to have a parity of reason " — cases of like treason — " but reserves them to the decision of parliament. This," he justly says, " is a great security as well as direction to judges ; and a great safeguard even to this sacred act it- self. It is so. And it was all the safeguard which the parlia- ment, by the constitution, as it is called, of England, could give. It was a safeguard from the arbitrary constructions of courts : it was a shelter from judicial storms : but it was no security against legislative tempests. No parlia^ ment, however omnipotent, could bind its successors, pos- sessed of equal omnipotence ; and no powei", higher than the power of parliament, was then or is yet recognised in the juridical system of England. What was the conse- quence ? In the very next reign, the fluctuating and capri- cious one of Richard the Second, the parliaments were pro- fuse, even to ridicule — if, in such a serious subject, ridi- cule could find a place — in enacting new, tyrannical, and even contradictory treasons. This they did to such an abominable degree, that, as we are told by the first parlia- ment which met under his successor, " there was no raaa * 1 1 Hale p. C. 259. lOF CRIMES, IMMEDIATELY AGAINST THE COMM0KITY. 415 who knew liow he ought to behave himself, to do, speak, ■or say, for doubt of the pains of such treasons." ^ In the furious and sanguinary reign of Henry the Eighth, the malignant spirit of inventing treasons revived, and was carried to such a height of mad extravagance, that, as we have seen on another occasion, the learned as well :as the unlearned, the cautious as well as the unwary, the honest as well as the vicious, were entrapped in the snares. How impotent, as well as cruel and inconsistent, is tyranny in the extreme ! His savage rage recoiled, at some times, upon those who were most near to him ; at other times, with more justice, upon himself. The beautiful and ami- :able Boleyn became the victim of that very law, which her husband, in his fit of lustful passion — for the monster was callous to love — made for her security. When the enormities of his life and reign were drawing towards their end, his physicians saw their tyrant in their patient ; and they refused to apprise him of his situation, because he had made it treason to predict his death. Admonished by the history of such times and transac- tions as these, when legislators are tyrants or tools of "tyrants ; establishing, under their own control, a power superior to that of the legislature ; and availing themselves of that power, more permanent as well as superior ; the people of the United States have wisely and humanely ■ordained, that " treason against the United States shall ■consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."' ^ In this manner, the citizens of the Union are secured ■eifectually from even legislative tyranny : and in this in- stance, as in many others, the happiest and most approved example of other times has not only been imitated, but excelled. This single sentence comprehends our whole of 1 St. 1, Hen. 4, c. 10. ^ c^n. U. S. art. 3, s. 3. 41G LECTURES ON LAW. national treason ; and, as I mentioned before, is transcribed from a part of the statute of Edward tlie Third. By those who proposed the national constitution, this was done, that^ in a subject so essentially interesting to each and to all, not a single expression should be introduced, but such as could show in its favor, that it was recommended by the mature experience, and ascertained by the legal interpreta- tion, of numerous revolving centuries. To the examination and construction, and well desig- nated force of those expressions, I now solicit your strict attention. " Treason consists in levying war against the United States." In order to understand this proposition accurately and in all its parts, it may be necessary to give a full and precise answer to all the following questions. 1. What is meant by the expression "levying war? " 2. By whom may the war be levied ? 3. Against whom must it be levied ? To each of these questions I mean to give an answer — if possible, a satisfactory answer ; but not in the order in which the}"^ are proposed. I begin with the second — bj-^ whom may the war spoken of be levied ? It is such a war as constitutes treason. The answer then is this : the war must be levied by those who, while they levy it, are at the same time guilty of treason. This throws us back,.necessarilyj upon another question — who may commit treason against the United States? To this the answer is — those who owe obedience to their authority. But still another ques- tion rises before us — who are they that owe obedience to that authority ? I answer — those who receive protection from' it. In the monarchy of Great Britain, protection and allegiance are univei'sally acknowledged to be rights and duties reciprocal. The same principle reigns in govern- ments of every kind. I use here the expression olediena' instead of the expression allegiance ; because, in England^ OF CEIMES, IMMEDIATELY AGAINST THE COMMUNITY. 41 T allegiance is considered as due to the natural,^ as well as to the moral person of the king ; to the man, as well as to the represented authority of the nation. In the United States, the authority of the nation is the sole object on one side. An object strictly corresponding to that, should be the only one required on the other side. The object strictly corresponding to authority is, obedience to that authority. I speak, therefore, with propriety and accuracy unexcep- tionable, when I say, that those who owe obedience to the authority, are such as receive the protection of the United States.^ This close series of investigation has led us to a standard which is plain and easy, as well as proper and accurate — a standard, which every one can, without the possibility of a mistake, discover by his experience, as well as by his understanding — by what he enjoys, as well as by what he sees. Every one has a monitor within him, which can tell whether he feels protection from the authority of the United States : if he does, to that authority he owes obedi- ence. On the political, as well as on the natural globe, every point must have its antipode. Of obedience the antipode is treason. I have now shown, by whom the war may be levied. On this subject, a great deal of learning, historical, legal,, and political, might be displayed; and changes might easily be rung on the doctrines of natural, and local, and temporary, and perpetual allegiance. I purposely avoid them. The reason is, that so much false is blended with so little genuine intelligence, as to render any discovery 1 1 Bl. Com. 371. PA change in a fundamental principle is followed by a change in every dependent rule deduced from that principle. A change in the concep- tion of law and the abrogation of the feudal idea of sovereignty does away with the personal nature of allegiance and causes a material change in the nature of the crime of treason, and renders entirely inadequate the definition of that crime given by Blackstone.] 418 LECTURES ON LAW. you would make an inadequate compensation for your trouble iu searching for it. The rights and duties of pro- tection and obedience may, I think, in a much more plain and direct road, be brought home to the bosom and the business of every one. I now proceed to another question — what is meant by the expression " levying war ? " From what has been said in answer to the former question, an, answer to this is so far prepared as to inform us, that the term war cannot, in this place, mean such a one as is carried on between independent powei"s. The parties on one side are those who owe obedi- ence. All the curious and extensive learning, therefore, concerning the laws of war as carried on between separate nations, must be thrown out of this question. This is such a war as is levied by those who owe obedience — by citizens ; and therefore must be such a war, as, in the nature of things, citizens can levy. The indictments for this treason generally describe the persons indicted as " arrayed in a warlike manner." As where people are assembled in great numbers, armed with offensive weapons, or weapons of war, if they march thus armed in a body, if they have chosen commanders or officers, if they march with banners displayed, or with drums or trumpets : whether the greatness of their num- bers and their continuance together doing these acts may not amount to being arrayed in a warlike maiuier,i deserves consideration. If they have no military arms, nor march or continue together in the posture of war; they may be great rioters, but their conduct does not always amount to a levying of war.^ If one, with force and weapons invasive or defensive, hold and defend a castle or fort against the public power ; this is to levy war. So an actual insurrection or rebel- 1 1 Hale, P. C. 131, 150. » Id. 131. OF CKIMES, IMMEDIATELY AGAINST THE COMMUNITY. 419 iioii is a levying of war, and by that name must be e}{- pressed in the indictment.^ But this question will receive a farther illustration from the answer to the third question ; because the fact of levying war is often evinced more clearly from the .purpose for which, than from the manner in .which, the iparties assemble. I therefore proceed to examine the last question — against whom must the war be levied? It must be levied against the United States. The words of the statute of treasons are, " If any one levy war against the king." I have before observed that, in England, allegiance is considered as due to the natural, as well as to the moral person of the king. This part of the statute of treasons has been always understood as ex- tending to a violation of allegiance in both those points of view — to the levying of war not only against his per- son, but also against his authority or laws.^ The levying of war against the United States can, for the reasons already suggested, be considered only in the latter view. The question now arising is the following — Is such or such a war levied against the United States? This ques- tion, as was already intimated, will be best answered by considering the intention with which it was levied.^ If it ds levied on account of some private quarrel, or to take re- venge of particular persons, it is not a war levied against the United States.* A I'ising to maintain a private claim of right; to break prisons for the release of particular persons, without any other circumstance of aggravation ; or to remove nuisances which affect, or are thought to affect, in point of interest, the parties who assemble — this is not a levying of war against the United States.^ Insur- rections in order to throw down all in closures, to open all prisons, to enhance the price of all labor, to expel for- ' 3 Ins. 10. 2 1 Haw. 37. 4 Bl. Com. 81. Fost. 211. 3 Fost. 208. < Fost. 209. « Id. 210. 27 420 LECTURES ON LAW. eigners in general, or those from any single nation living- under the protection of government, to alter the estab- lished law, or to render it . ineffectual — insurrections to- accomplish these ends, by numbers and an open and armed force, are a levying of war against the United States.^ The line of division between this species of treason-and an aggravated riot is sometimes very fine and difficult to be distinguished. In such instances, it is safest and most prudent to consider the case in question as lying on the side of the inferior crime.^ Treason consists in " adhering to the enemies of the United States, giving them aid and comfort." By enemies, are here understood the citizens or subjects of foreign princes or states, with whom the United States are at open war. But the subjects or citziens of such states or princes, in actual hostility, though no war be solemnly declared, are such enemies.^ The expressions "giving them aid and comfort " are explanatory of what is meant by adherence. To give intelligence to enemies, to send provisions to them, to sell arms to them, treacherously to- surrender a fort to them, to cruise in a ship with them against the United States — these are acts of adherence, aid, and comfort.* To join with rebels in a rebellion, or with enemies in acts of hostility, is treason in a citizen, by adhering to those enemies, or levying war with those rebels. But if this be done from apprehension of death, and while the party is under actual force, and he take the first oppor- tunity which offers to make his escape ; this fear and com- pulsion will excuse him.^ In England, the punishment of treason is terrible in- deed. The criminal is drawn to the gallows, and is not suffered to walk or be carried ; though usually a hurdle i* 1 Id. 211, 213. 2 1 Hale, P. C. 146. » Fost. 219. *Fost. 217. 1 Haw. 38. 4 Bl. Com. 82. ^Fost. 216. OF CRIMES, IMMEDIATELY AGAINST THE COMMUNITY. 421 allowed to preserve him from the torment of being dragged on the ground. He is hanged by the neck, and is then cut down alive. His entrails are taken out and burned, while he is yet alive. His head is cut off. His body is divided into four parts. His head and quarters are at the disposal of the king.^ In the United States and in Pennsylvania,^ treason is punished in the same manner as other capital crimes. A traitor is hostile to his country : a pirate is the enemy of mankind — hostis humani generis. Piracy is robbery and depredation on the high seas ; and is a crime against the universal law of society. By declaring war against the whole human race, the pirate has laid the whole human race under the necessity of de- claring war against him. He has renounced the benefits of society and government : he has abandoned himself to the most savage state of nature. The consequence is, that, by the laws of self defence, every community has a right to inflict upon him that punishment, which, in a state of nature, every individual would be entitled to in- flict for any invasion of his person or his personal prop- erty.^ " If any person," says a law of the United States, "shall commit, upon the high seas, or in any river, haven, basin, or bay, out of the jurisdiction of any particular state, murder or robbery, or any other offence, which, if com- mitted within the body of a county, would, by the laws of the United States, be punished with death ; every such offender shall be deemed, taken and adjudged to be a 1 4 Bl. Com. 92. ^Treason against the state is now punished by imprisonment at hard labor, for a period not less than six, nor more than twelve years. 3 Laws Penn. 600. For the description of treason against the state, see 1 Laws Penn. 726. 2 Laws Penn. 83. Md. » 4 Bl. Com. 71. 422 LECTtTKES ON LAW. pirate and felon, and being thereof convicted shall suffer death." i By the ancient common law, piracy committed by a subject was deemed a species of treason.^ According to that law, it consists of such acts of robbery and depreda- tion upon the high seas, as, committed on the land, would amount to a felony there .^ The law of general society, as well as the law of nations, is a part of the common law.* 1 Laws U. S. 1 cong. 1 sess. c. 9, s. 8. 24 g]. Com. 71. » 4 BI. Com. 72. * Id. 73. [Note on Treason. — The professional reader will not fail to observe the change which has taken place in the nature and elepaents of treason. These changes have been the natural and logical consequences of dis- carding the feudal notion of allegiance, which is tlie personal tie between the subject and the sovereign, and the substitution of obedience to the law and obligation to maintain tlie government, wherein is seen an entire departure from the old notions of allegiance. Treason therefore consists of some overt act, indicative of the intent to obstruct or destroy tlie government. Levying war, adhering to enemies or giving them comfort are acts of treason. The courts had occasion in the early days of the Republic to examiue into the new notions of treason. Among the most noted trials are Boll- man and Swartwort, reported in 4 Cranch's U. S. Reports. In th« argument of these cases our author's views as above set forth are cited. These cases grew out of the Burr treason cases, and Marshall's celebrated charge in Burr's case is reported in the appendix to 4 Cranch's U. S. Reports. In these cases and the cases therein cited will be found the new ideas in relation to treason, levying of war, and the necessity of some overt act, that is, the destruction of the English idea of constructive treason. Treason may be committed against a state. See People v. Lynch, 1 1 .Tohn, N. Y. 549. John Brown was tried, convicted, and executed for treason against a state.] CHAPTER VI. «F CRIMES, AFFECTING SEVERAL OP THE NATURAL RIGHTS OF INDIVIDUALS. Those crimes and offences of which I have already treated, attack some one of the natural rights of man or of society : there are other crimes and offences, which attack Deveral of those natural rights. Of these, nuisances are the most extensive and diversified. A nuisance denotes anything, which produces mischief, injury, or inconvenience. It is divided into two kinds — common and private.^ The latter will be treated under the second division of my system: it is a damage to property. Common nuisances are a collection of personal injuries, which annoy the citizens generally and indiscrimi- nately — so generally and indiscriminately, that it would be difficult to assign to each citizen his just proportion of redress ; and yet, on the whole, so " noisome," that public peace, and order, and tranquillity, and safety require them to be punished or abated. On this subject, and, I believe, on this subject alone, the common law makes no distinction between a person and a thing. The exquisite propriety, with which the distinction is lost in this subject, proves strongly the im- portance of preserving it in every other. The exception establishes the rule. How degraded are persons when they deserve to be 1 3 Bl. Com. 216. 4 Bl. Com. 166. 423 424 LECTURES ON LAW. classed with things ! We have seen, on a former occasion,* that — 1. The duellists and the promoters of duels are ranked with the offals of the shambles. The station is, indeed, a most humiliating one. Let no station, however, yield to absolute despair. From the very lowest depres- sion, as well as from the very highest exaltation, there is a return in a contrary course. In pure compassion for the degraded hero, let us give him at least one grade of pro- motion. Perhaps, by vigorous exertion, he may become qualified for his advanced dignity. The qiiarreller or promoter of quarrels of one sex, may behave so as to re- flect no great disgrace on the common scold of the other. She, too, is a common nuisance. 2. A common scold, says the law, is a public nuisance to her neighborhood : as such she may be indicted, and, if convicted, shall be placed in a certain engine of correction, called the trebucket, castigatory, or cuching stool ; which, in the Saxon language, signifies the scolding stool ; though now it is frequently corrupted into ducking stool ; be- cause the residue of the sentence against her is, that when she is thus placed, she shall be plunged in the water ^ — for the purpose of prevention, it is presumed, as well as of punishment. Our modern man of gallantry would not surely decline the honor of her company. I therefore propose humbly, that, in future, the cucking stools shall be made to hold double. 3. Eavesdroppers too, another set of honorable asso- ciates — -such as listen under walls, or windows, or eaves of a house, in order to hear the discourse of the family, and from that discourse to frame tales, mischievous and slan- derous — these are common nuisances : they may be in- dicted as such ; and as such may be punished by fine and finding sureties for their good behavior.^ 1 Ante, p. 400. » 4 Bl. Com. 169. » Id. ibid. OP CEIMES, AFFECTING EIGHTS OF INDIVIDUALS. 425 It is whispered to me, that the expression "eaves- droppers " must refer to a very early and a very simple state of society, when people lived in cabins or huts : be- cause, when people live in three-story houses, it would be rather awkward to listen at their eaves in order to learn the secrets of families. It is therefore suggested, that, as the common law is remarkable for its adroitness in ac- liommodating itself to the successive manners of succeed- ing ages, a small alteration should be made in the descrip- tion of this nuisance, in order to suit it to the present times ; and that the tea-table should be substituted in the place of the eaves of the house. I declare I have not the remotest objection to the proposal ; provided the wine tables, whenever they merit it, be of the party. 4. To keep hogs in any city or market town is a com- mon nuisance.^ 5. Disorderly houses are public nuisances ; and, upon indictment, may be suppressed and fined.^ 6. Everything offensive and injurious to the health of a neighborhood is a common nuisance ; is liable to a pub- lic prosecution ; and may be punished by fine according to the quantity of the misdemeanor.^ 7. Annoyances in highways, bridges, and public rivers are likewise common nuisances.* Other kinds might be nenumerated. Indecency, public and grossly scandalous, may well be considered as a species of common nuisance : it is cer- tainly an offence, which may be indicted and punished at the common law.^ Profaneness and blasphemy are offences, punishable by fine and by imprisonment. Christianity is a part of the common law.^ ' 4 Bl. Com. 167. = Id. ibid. « id. ibid. « Id. ibid. « 1 Haw 7. 1 Sid. 168. Wood Ins. 412. « 2 Str. 834. 4 131. Com. 59. CHAPTER VII. OP CRIMES AGAINST THE EIGHTS OF INDIVIDUALS ACQtriKBD UNDER CIVIL GOVERNMENT. Under civil government, one is entitled not onlj-- to those rights which are natural ; he is entitled to other* which are acquired. He is entitled to the honest adminis- tration of the government in general : he is entitled, iiL particular, to the impartial administration of Justice. Those rights may be infringed : the infringements of them, are crimes. These we next consider. 1. Extortion is the taking of money by any officer, by color of his office, either where none is due, or where less is due, or before it is due. At common law, this crime may be severely punished by fine and imprisonment, and by a removal from the office, in the execution of which it was committed.! 2. Oppression under color of office is a crime of still more extensive and of still more malignant imports- Tyrannical partiality is generally its infamous associate. These, at the common law, may be punished with fincv with imprisonment, with forfeiture of office, and with other discretionary censure regulated by the nature and the aggravations of the crimes.^ By a law of the United States, it is enacted, that if any supervisor or other officer of inspection of the excise shall be convicted of extortion or oppression in the exe- 1 1 Haw. 170, 171. 24 Bl. Com. 140. 426 OF CRIMES AGAINST THE RIGHTS OF INDIVIDUALS. 427 •ution of his office ; he shall be fined not exceeding five hundred dollars, or imprisoned not exceeding six months, or both, at the discretion of the court ; and shall also for- feit his office.^ 3. Even negligence in public offices, if gross, will ex- pose the negligent officers to a fine ; and, in very noto- rious cases, to a forfeiture of office.^ 4. Embracery is an attempt to infiuence a jury corruptly, by promises, persuasions, entreaties, monej', or entertain- ments. The person embracing is punished by fine and im- prisonment. The yielding juror is distinguished by supe- rior punishment.^ 5. Bribery is, when a judge, or other person employed in the administration of justice, takes any undue reward to influence his behavior in office. At common law, brib- ery, in him who offers, in him who gives, and in him who takes the bribe, is punished with fine and imprisonment. In high offices, the punishment has deservedly been higher still.* Bribery also signifies sometimes the taking or the giv- ing of a reward for an office of a public nature. Nothing, indeed, can be more palpably pernicious to the public, than that places of high power and high trust should be filled, not by those who are wise and good enough to execute them, but by those who are unprincipled and rich enough to purchase them.^ By a law of the United States, if any person shall give a bribe to a judge for his judgment in a cause depending- before him ; both shall be fined and imprisoned at the dis- cretion of the court ; and shall forever be disqualified to liold any office of honor, trust, or profit under the United States.^ 1 Laws U. S. 1 cong. 3 sess. c. 15, s. 39. 2 1 Haw. 168. , 3 4 Bl. Com. 140. * 4 Bl. Com. 139. '1 Haw. 168. «Laws U. S. 1 cong. 2 sess. c, 9, s. 21. 428 LECTURES ON, LAW. 6. Perjury is a crime committed, when a lawful oath is administered in some judicial proceeding, by one who has authority, to a person who swears absolutely and falsely, in a matter material to the issue or cause in question.^ An oath, says my Lord Coke, is so sacred, and so deeply concerns the consciences of men, that it cannot be admin- istered to any one, unless it be allowed by the common law, or by act of parliament ; nor by any one, who has not authority by common law, or by act of parliament : neither can aiiy oath allowed by the common law, or by act of par- liament, be altered, unless by act of parliament.^ For these reasons, it is much to be doubted whether any mag- istrate is justifiable in administering voluntary affidavits, unsupported by the authority of law. It is more than pos- sible, that, by such idle oaths, a man may frequently in- <3ur the guilt, though he evade the temporal penalties of perjury. It is a part of the foregoing definition of perjury, that it must be when the person swears absolutely. In addition to this, it has been said, that the oath must be direct, and not as the deponent thinks, or remembers, or believes.^ This doctrine has, however, been lately questioned ; and, it seems, on solid principles. When a man swears, that he believes what, in truth, he does not believe, he pronounces a falsehood as much, as when he swears absolutely that a thing is true, which he knows not to be true. My Lord Chief Justice De Grey, in a late case, said, that it was a mistake, which mankind had fallen into, that a person could not be convicted of perjury for deposing on oath ac- cording to his belief.* It is certainly true, says my Lord Mansfield, that a man may be indicted for perjury, in swear- ing that he. believes a fact to be true, which he must know to be false. ^ 131ns. 164. »3 Ins. 165. s Id. 166. 1 Haw. ITS. * Leach, 304. ^Id. OF CRIMES AGAINST THE EIGHTS OF INDIVIDUALS. 429 At common law, the punishment of perjury has been very various. Anciently it was punished with death; afterwards with banishment, or cutting out the tongue ; afterwards by forfeiture, now by fine and imprisonment, and incapacity to give testimony.^ To these last mentioned punishments, that of the pilloiy is added by a law of the ^ United States.^ 7. Subornation of perjury is the crime of procuring aliother to take such a false oath as constitutes perjury. It is punished as perjury.* 8. Conspiracy is a crime of deep malignity against the administration of justice. Not only those who falsely and maliciously cause an innocent man to be indicted and tried, are properly conspirators ; but those also are such, who conspire to indict a man falsely and maliciously, whether they do or do not any act in the prosecution of the conspi- racy.^ From the description of this crime it is ob- vious, that at least two persons are necessary to consti- tute it.^ He who is convicted of a conspiracj^ to accuse another of a crime which may touch his life, shall have the follow- ing judgment pronounced against him : that he shall lose liberam legem, the freedom and franchise of the law, by which he is disqualified to be a juror or a witness, or even to appear in a court of justice : that his houses and lands and goods shall be forfeited during his life : that his trees shall be rooted up, his lands shall be wasted, his houses 1 4 Bl. Com. 137. ^ 1 cong. 2 s^ss. c. 9, s. 18. 3 By a late act of assembly in Pennsylvania (6 Laws Penn. 51.3), it is -provided, that persons convicted of perjury, or subornation of perjury, shall forfeit and pay any sum not exceeding five hundred dollars, and ■suffer imprisonment and be kept at hard labor during any term not ex- ceeding seven years ; and further, shall thereafter be disqualified from holding any office of honor, trust, or profit in the commonwealth, and from being admitted as a legal witness in any cause. — Ed. * 4 Bl. Com. 137. 5 Haw. 189. ' « Id. 192. 430 LECTURES ON LAW. shall be razed, and his body shall be imprisoned. This is commonly called the villainous judgment ; and is given by the common law.^ By that law, all confederacies what- ever wrongfully to prejudice a third person are highly criminal.^ 9. Common barratry is another offence against the administration of justice. A common barrator is a com- mon mover, or exciter, or maintainer of suits or quarrels, either in courts, or in the country. One act only will nqt constitute a barrator. He must be charged as a common barrator.^ He is the common nuisance of society under a civil government. A common barrator is to be fined, imprisoned, and bound to liis good behavior : if he be of the profession of the law, he is also to be further punished by being dis- abled, in future, to practise.* 10. At common law, the embezzling, defacing, or alter- ing of any record, without due authority, was a crime highly punishable by fine and imprisonment.* By a law of the United States, if any person shall feloniously steal, take away, alter, falsify, or otherwise avoid any record, writ, process, or other proceedings in any of the courts of the United States, by means of which any judgment shall be reversed, made void, or not take effect ; such person shall be fined not exceeding five thou- sand dollars, or imprisoned not exceeding seven years, and whipped not exceeding thirty-nine stripes.^ 11. To obstruct the execution of lawful process, is a crime of a very high and presumptuous nature : to obstruct an arrest upon criminal process, is more particularly so. It has been holden, that the party opposing such an arrest 1 1 Haw. 193. 2 Id. 190. 3 ij. 243. ' III. 244. 5 Id. X12. " Laws U. S. 1 cong. 2 sess. c. 9, s. 15. OF CRIMES AGAINST THE KIGHTS OF INDIVIDUALS. 431 becomes a partner in the crime — an accessory iu felony, and a principal in treason.^ By a law of the United States, if any person shall know- ingly and wilfully obstruct, resist, or oppose any officer of .the United States in serving or attempting to serve any •mesne process or warrant, or any rule or order of any of the courts of the United States, or any other legal or judicial writ or process whatsoever ; or shall assault, beat, •or wound any officer, or other person duly authorized, in serving or executing any such writ, rule, order, process, or warrant; he shall be imprisoned not exceeding twelve ■.months, and fined not exceeding three hundred dollars.^ 12. When one is arrested upon a criminal process, it is an •offence even to escape from custody ; and this offence may be punished by fine and imprisonment.^ But if an officer, 'or a private person,* who has the custody of another, per- mits him to escape, either by negligence, or, still more, by •connivance ; such officer or private person is culpable in a imuch higher degree. He has not the natural desire of liberty to tempt — ^he has official obligations to prevent it. If he permits it through negligence, he may be punished by fine : if he permits it by consent or connivance, his con- •duct is generally agreed to amount to the same kind of crime, and to deserve the same degree of punishment, as' the crime of which the prisoner is guilty; and for which he is committed; whether trespass or felony, or treason.^ 13. To break a prison was, at the common law, a capital •crime, whatever might have been the cause, for which the person breaking it was committed. The reason assigned •was — interest reipublicse ut carceres sint in tuto." Seldom 1 4 Bl. Com. 129. 2 Haw. 121. ••^ Laws U. S. 1 cong. 2sess. c. 9 s. 22. » 2 Haw. 122. * Id. 138. 5 Id. 134. I Hale. P. C. 290. « 2 lus. 589, 432 LECTTJliES ON LAW. is there reason to complain of the common, as of a rigorous law. In this instance, however, there is unquestionably reason for complaint. The Mirrour complains of it as a. hard law. Its severity was moderated by a statute made in the reign of Edward the Second.^ By that statute, the breaking of a prison is not a capital crime, unless the party breaking it was committed for a capital crime. But to break prison, when lawfully committed for an inferior offence, is a misdemeanor, and may be punished with fine and imprisonment.^ 14. A rescue is the freeing of another, by force, from imprisonment, or from an arrest. In the person rescuing, it is generally the same crime, as a breach of prison, would have been in the person breaking it. There is, however,, one exception: a person, who is committed for treason and breaks the prison, is guilty of felony only.; he who' rescues him, is guilty of treason.^ By a law of the United States,* if any person rescue one convicted of a capital crime, the person rescuing shall be punished capitally : if he rescue one committed, for, but not convicted of a capital crime, or one committed for, or convicted of a crime not capital ; he shall be fined not exceeding five hundred dollars, and imprisoned not exceeding one year. 15. Offences against the courts, have always been ccto- sidered as offences against the administration of justice. By the ancient common law before the conquest, to strike or to draw a sword in them, was a capital crime ; ® and the law still retains so much of the ancient severity as only to exchange the loss of life for that of the offending limb. If, while the courts in Westminster hall are sitting ; or » 2 Ins. 589. St. Ed. 2. s. 2. ^2 Haw. 128. 4 Bl. Com. 131. 3 2 Haw. 139, 140. * 1 Cong. 2 sess. c. 9, s. 2a 5 3 Ins. 140. OF CRIMES AGAINST THE EIGHTS OF INDIVIDUALS. 433 , if, before justices of assize, or justices of oyer and terminer, any one shall draw a weapon upon any judge, though he strike not; or if he strike a juror or any other person, with or without a weapon ; he shall lose his right hand, shall forfeit all his goods and all the profits of his lands during his life, and shall suffer perpetual imprisonment.^ 1 1 Haw. 67. 3 Ins. 140. CHAPTER VIII. OF THE PERSONS CAPABLE OF COMMITTING CEIMES ; AND OF THE DIFFERENT DEGREES OP GUILT INCURRED IN THE COMMISSION OF THE SAME CRIME. I HAVE now enumerated the crimes and offences known to the common law ; and have stated their punishments, as inflicted either by that law, or by positive statutes of the United States or of Pennsylvania. When we come to a retrospect of this enumeration of crimes and punishments, we shall find that it is fruitful of much instruction, both of the speculative and of the practical kind. At present, let us consider who are capa- ble and who are not capable of committing crimes. The general rule is, that all are capable of committing them. This general rule will be best illustrated and proved bj ascertaining its exceptions. We have seen already, that the common law measures crimes chiefly by the intention. The intention necessarily supposes the joint operations of the understanding and the will. If the operation of either is wanting, no crime can exist. In idiots, at all times ; in lunatics, except during their lucid intervals ; and in in- fants, till they arrive at the age of discretion, the operation of the understanding is wanting. In ministerial officei-s, in wives, in persons under duress, the operation of the will is frequently presumed, by the law, to be wanting. In all such cases, the law imputes not criminality of in- tention. 434 ■OF THE PERSONS CAPABLE OF COMMITTING CRIMES. 435 On tliis subject, I cannot now enter into a detail ; suffice it to have mentioned the general principles, accord- ing to which the particular cases are classed and deter- mined. In the commission of the same crime, the law often dis- tinguishes different degrees of guilt. One may be a prin- cipal or an accessory : a principal may be so in the first or in the second degree : an accessory may be so before or after the fact. In some crimes, there are no accessories ; in others, there are none before the fact. The part acted by a principal is coexistent with the commission of the crime : the part acted by an accessory is antecedent or subsequent to it. A principal in the first degree, is he wlio personally per- petrates the crime : a principal in the second degree, is he who is present, aiding and abetting it.' An accessory before the fact is he who, though absent when the crime was committed, yet procured, counselle(i, commanded, or abetted the commission of it:" an acce."' sory after the fact is he who, knowing a crime to be conr- mitted, receives, relieves, comforts, or assists the criminal.' In treason, there are no accessories either before or after the fact; for all consenters, aiders, abettors, and knowing receivers and comforters of traitors, are them- selves principals. As to the course of proceeding, how- ever, those who actually coiumitted the treasonable fact, should be tried before those who consented or aided ; for, in a contrary course of proceeding, this inconvenience might follow, that those who, in other crimes, would be principals in" the second degree, might be convicted, and afterwards those who, in other crimes, would he, principals in the first degree, might be acquitted. This most evi- dently would be absurd.* » 1 Hale, P. C. 615. = Id. ibid. ' Id. 618. ' Id, 613. 28 436 LECTURES ON LAW. In trespass, and in crimes not felonious, all those who in felonious crimes, would be accessories before the fact, are deemed principals ; and those who, in felonious crimes, would be accessories after the fact, are not considered as having committed any offence.' The distinction between accessories after and accesso- ries before the fact, and between accessories and princi- pals, ought to be carefully and accurately preserved : for in many cases, there is a real difference between the de- grees of guilt, and a proportioned difference ought to be established, where it is not already established, between the degrees of punishment. The distinction between principals in the first and those in the second degree, though preserved in theory, and sometimes in the course of proceedings on the trial, is, nevertheless, lost universally in the scale of punishments. He who watches, at a distance, to prevent a surprise, Bract. 105 a. 5 Fleta, 1. 1, c. 26. » 4 Bl. Com. 308. 2 Haw. 155. 450 LECTUKBS ON LAW. In ancient times there were appeals for a breach of tlie peace, for a battery, and for false imprisonment, as well as for more aggravated injuries and crimes ; but they liavo been out of use, and converted into actions of trespass, for many hundred years.' An appeal lies for mayhem, foi* larceny, for ai-son, for rape, for death. It is brought by the party ravished, rob- bed, maimed, or whose house was burned ; or by the wife, or, if no wife, by the heir, of the person killed.^ An ap- peal may be brought previous to an indictment ; and if the ■ defendant be acquitted, he cannot afterwards be indicted for the same crime : if he is found guilty, he shall suffer the same punishment as if he had been convicted on a prosecution by an indictment.^ An appeal may be dis- charged by the concurrence of all the parties interested — by the pardon of the crown, and by the release of the appellant.* The appeal can be traced to the ancient forests of Ger- many. " Luitur homicidium," says Tacitus,* " certo armentorum ac pecorum numero ; recipitque satisfactio- nem universa domus." On this subject there is, in our law books, an immense profusion of professional learning. As the appeal is now but little used, I decline any minute inquiry concerning it : as it is still in force, it would have been improper wholly to have omitted it. 2. A second mode of prosecuting crimes and offences is by information. Some informations are brought partly at the suit of the state, and partly at the suit of a citizen. These are a species of qui tarn ® actions ; and will be con- sidered when we treat concerning civil suits. Informations in the name of the state, or of the crown 1 2 Haw. 157. « Id. 164. 4 Bl. Com. 310. ' 4 BI. Com 31]. « 1 Hale, P. C. 9. ' De mor. Ger. c. 21. « 4 Bl. Com. 303. •OF THE DIFFERENT STEPS PRESCRIBED BY THE LAW. 451 nlone are of two kinds : those which are filed ex officio by the public prosecutor, and are properly at the suit of the public ; and those which are carried on in the name, in- deed, of the commonwealth or crown, but, in fact, at the instance of some private person or common informer. The first have been the source of much ; the second have been the source of intolerable vexation : both were the ready tools, by using which Empson and Dudley, and an arbi- trary star chamber, fashioned the proceedings of the law into a thousand tyrannical forms. Neither, indeed, ex- tended to capital crimes : but ingenious tyranny can tor- ture in a thousand shapes, without depriving the person tortured of his life. Restraints have, in England, been imposed upon the last species : but the fltst — those at the king's own suit, filed by his attorney general — are still unrestrained. ^ By the constitution of Pennsylvania, both kinds are effectually removed. By that constitution, however, informations are still suffered to live : but they are bound and gagged. They are confined to official misdemeanors ; and even against those, they cannot be slipt but by leave of the court. By that constitution, "no person shall, for any indictable offence, be proceeded against criminally by in- formation " — " unless by leave of the court, for oppression and misdemeanor in office." Military cases are also ex- «epted.2 3. Presentment is a third species of prosecution. A presentment, in its most extensive signification, compre- hends inquisitions of office, of which the coroner's inquest is one : it comprehends likewise regular indictments, which are preferred and found. But, in its proper sense, it is an accusation found by a grand jury, of their own motion, and from their own knowledge and observation without any bill being laid before them by the prosecutor '4 m. Com. 307. " Art. 9, s. 10. 29 452 LKCTUEES ON LAW. * for the public. This presentment is afterwards reduced into proper form bj- the public prosecutor ; and in this form is sent to the grand jury, in the same manner as bills which are originally preferred to them by that oiBcer. These bills and this presentment, found in form, are in- dictments. When the grand jury, after having heard the evidence' adduced to support a bill, think it insufficient for this- purpose, they endorse on tlie bill " ignoramus," and direct the foreman to sign this endorsement. By this endorse- ment it is meant, that though tlie matters charged in the bill may be true, their truth is not sufficiently evinced to the jury. If the charge in the bill appears to be sup- ported, it is then endorsed " a true bill," and as such is signed by the foreman. A grand jury must consist of at least twelve member's,, because twelve are necessary — it must not consist of more than twenty-three members, because twelve are sufficient, to find an indictment ; and twelve would not be a majority of a greater number. At the common law, a grarid jury cannot find an indict- ment for any crime, but such as has been committed within the county or precinct, for which they are re- turned.^ A bill cannot be returned true in part, and false in part ; it must be returned "a true bill " or " ignoramus '' for the wliole. Nor can it be returned specially or con- ditionally.^ Much might be said concerning the form of indictments generally, and also concerning the particular form of the indictment for each particular species of crimes ; but this kind of learning, which, by the by, ought neither to be overlooked nor disregarded by the professional lawyer, is found in full and minute detail in the numerous books- 1 2 Haw. 220. s Id. 210. or THE DtFFEBENT STEPS PPwESCEIBED BY THE L,A"W. 453 and treatises of the criminal law. To these I beg leave to refer you. To go fully into particulars would employ too great a proportion of ray lectures : to go imperfectly would convey no information that could be deemed regular or satisfactory. Suffice it to observe, as a general and important prin.' ciple with regard to indictments, that as to persons, times» and places, and, above all, as to the descriptions of crimes., the most precise certainty which can be reasonably ex- pected is indispensably required. Certainty, indeed, is a governing and a pervading quality in all good legisla- tion, and in all good administration of law. In this very- important quality, the common law, pure and unadulter- ated, has attained a very uncommon degree of perfection. I add, that tlie common law is equally remarkable for the simplicity as for the accuracy of its forms. I repeat it — they deserve the close study and attention of every lawyer by profession. Even to others, who have leisure and a taste to inspect minute as well as splendid beauties, the forms of the common law will afford entertainment and instruction. The principles of the great institution of grand juries have been explained fully in another place. When a person is indicted, and is not already commit- ted or under bail, the next step in the legal arrangement is, to issue process against him, in order that he may be obliged to answer the charge, of which he stands in- dicted. On an indictment for any crime under the degree of treason or felony, the process proper to he first awarded, at the common law, is a venire facias, which, from the very name of it, is only in the nature of a summons to require the appearance of the party. ^ If this process is not obeyed, and it is seen by the return that he has lands -2 Haw. 283. 464 LECTURES ON LAW. in the county by which he may be distrained ; then a dis- tress shall be awarded against him, from time to time, till he appear. But if the return shows that he has no lands in the county ; then a writ of capias is awarded against him. By this writ, as is intimated from its name, the sheriff is commanded to take the body of the person ac- cused, and have him before the court at the time and place specified in the writ itself. If he cannot be taken on the first capias, a second, and so on, shall be issued. ' On an indictment for felony or treason, a capias is always the first process.^ We are told that, in the case of misdemeanors in Eng- land, it is now the usual practice for any judge of the court of king's bench, upon certificate of an indictment found, to award a writ of capias immediately against the defendant. ^ If the party abscond, and cannot be taken ; then, after the several writs have been issued against him in regular number according to the nature of the crime with which he is charged, he is, at five county courts, proclaimed and required to surrender himself ; and if he does not appear at the fifth requisition, he is then adjudged to be outlawed — put out of the protection of the law. * "When one is outlawed on an indictment for a misde- meanor, he forfeits his goods and chattels. In felony or treason, outlawry is a conviction and an attainder of the crime charged in the indictment.^ Any one may ar- rest an outlaw for those crimes, in order to bring him to execution. He was formerly said " gerere caput lupinum," and might be knocked on the head like a wolf, by every oTie who met him. But the law is now very justly holden to be otherwise. As to the security of his person, the greatest and the most notorious criminal is still under the 1 2 Haw. 283. = Id. 284. « 4 Bl. Com. 314. * Id. ibid. 6 Id. ibid. 2 Hale, P. C. 205. OF THE DIFFERENT STEPS PRESCRIBED BY THE LAW. 455 protection, though liable to the punishment, of the law. It is lawful, as has been said, to apprehend him, in order to bring him to legal punishment. But to kill him wan- tonly, wilfully, or deliberately, merely because he is an outlaw, is murder.i The proceedings necessary to an outlawry are uncom- monly circumstantial, and must be exact to the minutest degree. Indeed, it is proper that they should be so. The consequence is, that au outlawry may, in most instances, be reversed on a writ of error. When this is done, the person indicted is admitted to his defence against the in- dictment. > When a person indicted comes or is brought before the proper court, he is arraigned ; in other words, he is called upon by his name, the indictment is read to him, and he is asked what he has to say in answer to the indictment. At this important crisis of his fate, when his life may depend upon a word, and when, for this reason, every word should, as far as possible, be the result of perfect recollec- tion and freedom, he must not he loaded with fetters or chains ; he must not be brought to the bar in a contume- lious manner ; he ought to be used with all the humanity and gentleness consistent with the situation, in which he unfortunately stands ; and he should suffer no uneasi- ness, except that which proceeds from internal causes. ^ The judge should exhort him to answer without fear ; and should give him assurance that justice shall be duly ad- ministered.-^ "Cum captus coram justiciariis producen- dus fuerit, produci non debet ligatis manibus (quamvis aliquando compedibus propter periculum evasionis) ethoc ideo, ne videatur coactus ad aliquam purgationem suscipi- endam."* Is it necessary to fortify, by authority, the law of hu- 1 1 Hale, P. C. 497. '2 Haw. 308. « 2 Ins. 316. ♦ Bract. 137, a. 456 LECTUEES ON LAW. manity ? Sometimes it is.- Sometimes tlie law of humanity, even when fortified by authority, has been pleaded in vain. The cruel violation, as well as the benign observance, of the principles of goodness and law^ought to be known and marked. The last should be approved and imitated : the first should be detested and avoided. In the present en- lightened century — and humanity should surely attend knowledge — a chief justice of the court of king's bench suffered a person in irons to be arraigned for treason before him, though he was informed, that they were so grievous as to prevent the prisoner's sleeping except in a single posture, and that even while he was before the court, he would be unable to stand, unless the jailer — for the jailer had more bowels tlian the judge — unless the jailer assisted him to hold up his chains.^ It is usual to desire the prisoner to hold up his hand when he is arraigned. This formality is not improper, be- cause it serves to identify tl)e person : it is not necessary, because the person may be identified in another manner. My Lord Bacon mentions a Welshman, who put a curious construction on, this ceremony. Having been at a court, where he saw the prisoners hold up their hands at the bar as they severally received their sentences, he told one of his acquaintances that the judge was an excellent fortune teller ; for if he only looked upon the hand of a person, he could immediately declare what would be his fate. A person, upon being arraigned, must stand mute, or give an answer.^ One is considered as standing mute, when he gives no answer at all ; when he gives such an answer as cannot be received ; and when he pleads not guilty, but, on being asked how he will be tried, either refuses to say anything, or will not put himself upon the country .^ On standing mute, the judgment was indeed a terrible 1 6 St. Tri. 231. 2 3 Ld. Bac. 270. ' 2 Hale, P. C. 316. OF THK DIFFEEENT STEPS PRESCRIBED BY THE LAW. 457 one — " that he be sent to the prison from 'wlience he caine, and put into a dark lower room, and there be laid naked upon the bare ground, upon his back, without any clothes or rushes under him, or to cover him, his legs and arms drawn and extended with cords to the four corners of the room, and upon his body laid as great a weight of iron as he can bear, and more. The first day he shall have three morsels of barley bread without drink ; the next day he shall have three draughts of standing water next the door of the prison, without bread ; and this to be his diet till he die."^ To the execution even of this terrible judg- ment some have submitted, that from forfeiture their es- tates might be rescued for the benefit of their children ; for by standing mute, forfeiture and the corrupion of blood are prevented. The origin of the peine fort et dure it is exceedingly dif- ficult to trace : it seems, however, to be no legitimate off- spring of the ancient common law : by that law, the stand- ing mute amounted to a confession of the charge.'* By the law of Scotland, if the panel stands mute and will not plead, the trial shall proceed as usual ; and it is left to him to manage his own defence, as lie shall think proper.^ The spirit of this law is adopted by the legisla- ture of the United States.* " If a person indicted shall stand mute, the court shall proceed to his trial, as if he had pleaded not guilty, and shall render judgment accord- ingly.^ To an indictment, the prisoner may give an answer, or plead, as the law terms it, in a great variety of ways. 1. He may admit the facts, as stated in the indictment, to be true ; but, at the same time, may deny that the 1 2 Hale, p. C. 319. M. BI. Com. 323. ' Bar. on St. 87. * Laws U. S. 1 con. 3 sesf . c. 9, s. 30. ' A similar provision is contained in an act of assembly of Pennsyl- Tania. 3 Laws Penn. 119. Ed. 458 LECTtTRES ON LAW. facts, thus stated and admitted, amount in law to the crime charged in the indictment. This is a demurrer. Thus, if one is indicted for larceny comnaitted by stealing apples growing on a tree, he may demur to this indictment ; iu other words, he may admit that he took the apples from. the tree, but deny that the fact of taking them amounts, in law to the crime of larceny ; because apples, unsevered from the tree, are not personal goods ; and because of per- sonal goods only larceny can be committed. This de- murrer brings regularly before the court the legal ques- tion, whether the facts stated constitute the crime charged in the indictment. When the prosecutor joins in this de- murrer — when he avers that the facts stated constitute the crime charged ; then an issue is said to be joined. An is- sue is the result of the pleadings in a single point, denied on one side and affirmed on the other. It is either an issue in law, such as has now been mentioned; or it is an issue in fact, such as will be mentioned hereafter. It seems to be taken for granted, by many respectable writers on the criminal law, that if, on a demurrer to an indictment, the point of law is determined against the prisoner, he shall have the same judgment pronounced against him as if he had been convicted by a verdict. With regard to crimes not capital this seems to be the case : but with regard to (;apita,l crimes, no adjudication is produced in support of the opinion. My Lord Hale in- deed says, in one place of his valuable history of the pleas of the crown, that if a person be indicted of felony, and demur to the indictment, and it be judged against him, he shall have judgment to be hanged ; for it is a confes- sion, and, indeed, a wilful confession of the indictment.^ In another place, however, he takes a distinction between this kind of confession, which, though voluntary, is still extra-judicial, and that full and solemn confession, which 1 2 Hale, P. C. 207. OF THE DIFFERENT STEPS PKESCEIBBD BY THE LA\\'. 4.V,> will by and by be mentioned. An extra-judicial confes- sion, says he, though it be in court, as where the prisoner freely discloses the fact, and demands the opinion oi the court whether it be felony, will not be recorded by the court, even if, upon the fact thus disclosed, it appear to be felony ; but he will still be admitted to plead not guilty to the indictment.^ There seems to be a solid reason for this distinction: for though a demurrer admits the truth of the facts as , stated in the indictment, yet it cannot be considered as an explicit and solemn confession of what is more material: — the criminal and feloiuous intention, with which the facts were done. This criminal and fel- onious intention is the very point or gist, as the law calls it, of the indictment ; and should be answered explicitly and directly, II. This answer may be given by a solemn and judicial confession, not only of the fact, but of the crime — in the language of the law, it may be done by pleading guilty. Upon this subject of confession on the part of the crim- inal, three very interesting questions arise with respect to capital crimes: for of those only I now sjjeak. 1. Is a confession necessary? 2. Ought it to be made? 3. Ought it to be received as a, sufficient foundation for a conviction, and judgment against life ? 1. In many countries, his confession is considered as absolutely indispensable to the condemnation of the crim- inal. The Marquis of Beccaria conjectures that this rule has been taken from the mysterious tribunal of penitence, in which the confession of sins is a necessary part of the sacrament : thus, says he, have men abused the unerring light of revelation.^ This confession they endeavor to obtain b}'' the oath, and by the torture, of the person ac- cused. He is obliged to answer interrogatories. These interrogatories — we are told; for of experience on this 1 2 Hale, P. C. 225. ^ Bee. c 16. 460 LECTURES ON LAW. •subject we are happily ignorant — these interrogatories are reduced to a system, captious, uncandid, and ensnaring ; and teiTor is frequently added to fraud.^ The practice of demanding the oath of the accused is said, by the famous President de Lamoignon, to have derived its origin from the customs of the inquisition.^ Veiy opposite, upon this subject, is the genius of the Gentoo code. In that very ancient body of law, we find it expressly declared, that wherever a true testimony would deprive a man of his life ; if a false testimony would be the preservation of it, such false testimony is lawful.^ Between those extremes the constitution of Pennsyl- vania * observes the temperate mean. " In prosecutions by indictment or information, a man cannot be compelled to give evidence against himself." This is likewise an immemorial and an established principle of the common law. In the case of oaths, says Beccaria, which are adminis- tered to a criminal to make him speak the truth, when the contrary is his greatest interest, there is a palpable con- tradiction between the laws and the natural sentiments of mankind. Can a man think himself obliged to con- tribute to his own destruction ? Why should he be re- duced to the terrible alternative of doing this, or of offend- ing against God? For the law, which, in such a case, requires an oath, leaves him only the choice of being a bad Christian, or of being a martyr. Such laws, continues he, are useless as well as unnatural : they are like a dike opposed directly to the course of the torrent ; it is eithtr immediately overwhelmed, or, by a whirlpool which itself forms, it is gradually undermined and destroyed.* 1 .5 War. Bib. 321. » 8 War. Bib. 195. » Gent. Laws 115. * Art. 9, s. 9. * Bee. c. 18. OP THE DIFFERENT STEPS PRESCRIBED BY THE LAW. ■iCil If it is useless, unjust, and unnatural, to attempt the extracting of truth by means of the oath ; what is it, to make this attempt by means of the torture ? This, like the former, is happily unknown to the common^ law. This, like the . former, can be traced to the merciless trib- unals of the inquisition. This, like the former, has been a practice both general and destructive. To the civil law, its origin has been frequently ascribed. My Lord Coke, in his third Institute, declares himself explicitly of this opinion. He says, that in the reign of Henry the Sixth, the Duke of Exeter and the Duke of Suffolk intended to have brought the civil laws into England ; and, for a beginning, firet brought into the tower the rack or brake allowed in many cases by the civil law.i To systems as well as to men, justice should be done. From the imputation of a sanguinary as well as of a tyrannical spirit, the Roman law, at least in its brighter ages, deserves to be rescued. The different periods in the history of that celebrated law should be carefully distinguished ; and the redness or the blackness of one era ought not to shade or stain the purity and the splendor of another. In the times of the republic, torture was known at Rome ; and this, it must be owned, was too mucli to be known anywhere. It was confined, however, to the slaves. The whole torrent of Cicero's eloquence was poured indignant upon the infamous Verres, because he had the audacity as well as cruelty to torture a .Roman citizen, with his eyes turned towards Rome. " Csedebatur virgis in medio foro Messanae civis Romanus, judices ; cum interea nuUus gemitus, nulla vox alia istius miseri, inter dolorem cre- pitumque plagarum, audebatur, nisi hsec, civis Romanus sum." — " O nomen dulce libertatis ! jus • eximium nostrae civitatis ! O lex Porcia, legesque Semproniae ! O 13 Ins. 35. 462 LECTUKES ON LAW. graviter desiderata, et aliquando reddita plebi Romanse tribunicia potestas ! Huccine tandem omnia reciderunt, ut civis Romanus, iii provincia populi Romani, in oppido fcederatoruni, ab eo qui beneficio populi Romani fasces et secures haberet, deligatus in foro virgis csederetur ? Quid cum ignes ardentesque laminae cseterique cruciatus ad- niovebantur ? " ^— " Non fuit his omnibus iste contentus. Spectet, inquit, patriam : in conspectu legum libertatisque nioriatur." ^ In another place, the same exquisite judge of human nature and of law describes, in the most masterly manner, the futility of that kind of proof, which arose from the torture of slaves. " Qusestiones nobis servorum, ac tor- menta accusator minitatur; in quibus quanquam nihiL periculi suspicamur, tamen ilia tormenta gubernat dolor, moderatur natura cujusque tum animi turn corporis ; regit quEesitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur." ^ About three hundred years after Cicero, the celebrated Ulpiau, characterized as " the friend of the laws and of the people," * speaks of torture in the same strain — " Res est fragilis et pericijlosa, et quae veritatem fallat. Nam ple- rique patientia sive duritia tormentorum ita tormenta eon- teninunt, ut exprimi eis Veritas nuUo modo possit: alii tanta sunt impatientia, ut in quovis mentiri, quam pati tormenta velint. Ita fit, ut etiara vario modo fateantur, ut non tantum se, verum etiam alios comminentur." ^ The early Christians also bore their testimony against the cruel and absurd practice. " Cum quseritur," says St. Augustine, " utrum vir sit nocens, cruciatur ; et innocens luit pro incerto scelere certissimas psenas ; non quia illud commisisse detegitur, sed quia non commisisse nescitur j 1 Cic in Ver. V. 62, 63. 2 ij. 66. " Cic. pro. P. Syl. c. 28. * 1 Gib. 249. "' 2 War. Bib. 23. OF THE DIFFERENT STEPS PRESCRIBED BY THE LAW. 463 ignorantia judicis calamitas innocentis " — "judex torquit accusatum, ne occidat, nesciens, innocenteiii ; tortuni et innocenteiii occidit, quern, ne innocentem occiderit, toi- *serat." ^ Among the moderns, says a sensible 'Fi'ench writer, tlie practice of torture has been adopted and carried to the last degree of atrocity, in those countries in which huinaii nature has been most debased and most oppressed — I mean those of the inquisition : on the contrary, it has been abolished or moderated in those, in which the human mind has reassumed her liberty^ — ^in Geneva, in England, in France under Lewis the Sixteenth.^ From what has been observed, the inference is clear, that the confession of the criminal is not necessaiy to a conviction or sentence in the case of a capital crime. 2. In the case of a capital crime, ought this confession to be made ? I think not. When I say this, I speak with a reference to the effect, which this confession is allowed to have by the common law. I am justified, by authority in what I say. From tenderness to life, the court is usually very averse to the receiving and recording of such a confession ; and will advise the prisoner to retract it, and plead another plea to the indictment.^ If a person under the age of twenty-one years make this confession, the court in justice ought not to record it, but should put him to plead not guilty ; or, at least, ougbt to inquire by an inquest of office concerning the truth and circumstances of the fact.* A confession, refused altogether, or received with reluc- tance, ought not to be made. 3. Ought this confession to be received, and considered as a. sufficient foundation for a conviction and judgment against life? 1 1 Gib. 22. 2 8 War. Bib. 197. 8 2 Hale, P. C. 225. 4 Bl. Com. 324. * 1 Haie, P. C. 24. 464 LTSCTURES ON LAW. By the common law, as it now is and as it always has- been received, such a confession is deemed a sufficient foundation for a conviction and judgment against life.. This express, judicial, and direct confession is considered as the higliest possible conviction ; ^ and after it is made and received, the court does and can do nothing but pro- nounce the judgment of the law.'"* It now, I apprehend, appeal's from principle, as it ap- peared a little while ago from authority, that, on an in- dictment for a capital crime, this express, judicial, and direct confession of it ought not to be made. He who makes it undertakes to be the arbiter of his own life : for, as we now see, the judgment of death follows as a con- sequence, necessary and unavoidable. A decision of this very solemn kind ought to be a decision of the society, upon tlie principles formerly explained, and not a decision, of the party himself. For such a decision he may be un- qualified, sometimes on account of his understanding, sometimes on account of his disposition. He maj^ not be- apprised of every legal ingredient, which ought to form a part in the composition of the crime which he confesses : human conduct is sometimes influenced by an irresolute impatience, as well as, at other times, by an overweening fondness of life. It is certainly true, that pei-sons have confessed them- selves guilty of crimes, of which, indeed, they were inno- cent. A remarkable case of this nature is mentioned in our law books. A gentleman of the name of Harrison appeared alive, many years after three persons had been hanged for his murder ; one of whom confessed it.^ Many persons accused have confessed themselves guilty of witchcraft, and of other crimes equally problematical. By the civil law, the confession of the person accused- 1 ^ Haw. 333. » 4 Bl. Com. 324 ' » Tr. per Pais. 603. OP THE DIFFERENT STEPS PRESCEIBED BY THE LAW. 465' is not sufficient to convict him of a capital crime, without other proofs : for it may so happen, that such a confession is dictated only by the inquietude or despair of a troubled mind.^ Another reason may likewise be assigned : he may, by a mistaken as well as by a disordered understand- ing, acknowledge that to be a crime, which in law is not that crime. Thus much for confession, or the plea of guilty to an indictment. III. An indictment may be answered by a plea to the jurisdiction of the court, in which it is found. This plea is proper when an indictment for any particular crime is found in a court, which has no authority to hear, try, or determine that particular crime : as if a court of quarter sessions should arraign one on an indictment for treason,, of which that court has no jurisdiction.^ IV. An indictment may be answered by a plea in abate- ment — in other words, a plea, the design of wPiich is tO' destroy the indictment, without answering the crime which it charges. This, in some cases, may be very proper ; as when one is indicted and called to answer by a wrong name. If he suffer this mistake to pass unnoticed, it is doubtful whether he may not afterwards be indicted for the same crime by his right name. If the plea be sup- ported, the indictment will be abated ; but he may be immediately indicted anew, by the name which he has averred to be his true one. For in all pleas in abatement it is a rule, that he who would take advantage of a mis- take, must show, at the same time, how that mistake may be rectified. V. An indictment may be answered by a plea in bar. A plea in bar does not directly deny the commission of the- crime charged ; but it adduces and relies on some reason calculated to show, that the prisoner cannot be tried or 1 1 Domat. 460. ^ 2 Hale, P. C. 256. 466 LECTURES ON LAW. punished for it, either on that or on any other indict- ment. A former acquittal of the same charge is a plea of this ^ind : for it is a maxim firmly established by the common law, that no one can be brought in danger oftener than once on account of the same crime. A former conviction of the same crime is also a plea of this kind ; and depetids on the same principle. An attainder of any capital crime is a good plea in bar of an indictment for the same, or for any other crime. The reason is, that by the attainder the prisoner is dead in law ; his blood is corrupted ; and his estate is forfeited ; so that an attempt to attaint him a second time would be altogether nugatory and superfluous. It is natural and obvious to remark here, how the severity of punishment becomes the parent of impunity for crimes. When one is punished, or condemned to be punished, as far as he can be punished, for one crime, he may commit another, without any fear or risk of additional punishment. In proportion as the criminal code becomes less severe, the operation of the plea of a former attainder becomes less powerful ; for it is never proper, unless when a second trial could answer no purpose. A pardon is another plea in bar of an indictment ; for, by remitting the punishment of the crime, it destroys the end which is proposed by the prosecution. In England, an advantage is gained by pleading a pardon, which cannot be obtained by it after an attainder. A pardon prevents the corruption, but cannot restore the purity of blood. If any one of these pleas in bar is successful, the party pleading it is discharged from farther prosecution ; but if they should all fail, a resource is still left. VI. An indictment may be answered by pleading ncft guilty of the crime which it charges. An issue, you rec- OF THE DIFFEBBNT STEPS PKESCKIBED BY THE LAW. 467 r> X. Y. '^,3d ; Taylor r. Heidorn, 46 Barb. N. T. Supreme Ct. Rep(., 458 ; Ingersoll r. Sergeant, 1 Wharton Pa. Kept., «9. , The importance of the inquiry caiuiot be over-estimated and is noth- ing less than this : May a purchasei- from an individual or corporation by contract, i.f., by accepting such covenants with his deed or lease, subject himself and his heirs and assigns to conditions identical in char- acter with feudal rents and services upon condition of forfeiture of the estate ? If so, the allodial holder may obtain the rights of a feudal lord without the obligation. We doubtless have those who would enjoy the position, as some are already subject to epithets implying such relations. One instance will illustrate the question. The case of Taylor v, Heidorn, above cited, involved a grant by Yan Rensselaer, in 1794, to Her- 31 500 LECTUKES ON LAW. rick, of a so-termed fee-simple estate at an annual rental of twelve and: six-tenths bushels of wheat, covenanted to be paid to Van Rensselaer, his heirs and assigns, providing for a distress in case of default and re- entry if distress was insufficient. In 1862, after a default in delivering the grain of twelve years, such jirovisions were upheld, the estate forfeited and entry allowed. It is difficult to distinguish such an holding from a feudal socage tenure. In the Pennsylvania case cited, tlie ground rents are held to be feudal tenures between individuals. There is no fiction about the nature of tlie holding. The deed of conveyance did not divest Van Rensselaer of all interest in the land ; it was held by a fixed and determinate service. Sees Kent's Com. 509. In this country, says Robinson in his Elementary Law (§ 99), tenure, in the feudal sense, never has been recognized. [This statement is quite too broad.] There is here no feudal superior, to whom service is to be rendered or tribute paid. In nearly all the states tenure is allodioJ (from al,, the whole, and od, ownership), and the holder of an estate has tlie entire ownership thereof residing in him. Conditional estates in- deed exist, and are both numerous and important ; hut the conditions originate in some contract between the parties, not in any feudal rela- tion, and characterize or qualify the existence of estates, and not the tenure by which they are held. From this one would infer that if the conditions " originate in some contract between the parties," this changes the nature of the relation ; but, as we have seen, feudal tenures might and did so originate. The real test is not to be foimd in words or names, but in the relations created by the contract in reference to how the land is held. That personal fealty is abolished is clear ; but this was only one of the incidents of tenure. If the other services or tribute, in the shape of rent charges, may be created by contract, how can it be said that land may not be held of an individual ?] CONSIDERATIONS ON THE NATURE AND EXTENT OF THE LEGISLATIVE AUTHORITY OF THE BRITISH PARLIAMENT. PUBLISHED IN THE YEAR M,DCC,LXXIV. ADVERTISEMENT. The following sheets were written during the late non- importation agreement: but that agreement being dis- solved before they were ready for the press, it was then judged unseasonable to publish them. Many will, per- haps, be surprised to see the legislative authority of the British parliament over the colonies denied in every in- stance. Those the writer informs, that, when he began this piece, he would probably have been surprised at such an opinion himself ; for that it was the result, and not the occasion, of his disquisitions. He entered upon them with a view and expectation of being able to trace some consti- tutional line between those cases in which we ought, and those in which we ought not, to acloiowledge the power of parliament over us. In the prosecution of his inquiries, he became fully convinced that such a line does not exist ; and that there can be no medium between acknowledging and denying that power in all cases. Which of tliese two alternatives is most consistent with law, with the prin- ciples of liberty, and with the happiness of the colonies, let the public determine. To them the writer submits his sentiments, with that respectful deference to their judg- ment, which, in all questions affecting them, every indi- vidual should pay. August VJth, 1774. ON THE LEGISLATIVE AUTHORITY OF THE BRITISH PARLIAMENT. No question can be more important to Great Britain, -and to the colonies, than this — does the legislative author- ity of the British parliament extend over them ? On the resolution of this question, and on the measures which a resolution of it will direct, it will depend, whether the parent country, like a happy mother, shall behold her children flourishing around her, and receive the most grateful returns for her protection and love ; or whether, like a step-dame, rendered miserable by her own unkind conduct, she shall see their affections alienated, and her- ■ self deprived of those advantages which a milder treat- ment would have ensured to her. The British nation are generous : they love to enjoy freedom : they love to behold it : slavery is their greatest abhorrence. Is it possible, then, that they would wish themselves tlie authors of it? No. Oppression is not a plant of the British soil ; and the late severe proceedings against the colonies must have arisen from the detestable schemes of interested ministers, who have misinformed and misled the people. A regard for that nation, from 505 .^06 LECTURES ON LAW. whom we have sprung, and from whom we boast to have derived the spirit which prompts us to oppose their un- friendly measures, must lead us to put this construction on what we have lately seen and experienced. When,, therefore, they shall know and consider the justice of our claim — that we insist only upon being treated as freemen, and as the descendants of those British ancestors, whose memory we will not dishonor by our degeneracy, it is rea- sonable to hope, that they will approve of our conduct, and bestow their loudest applauses on our congenial ardor for liberty. But if these reasonable and joyful hopes should fatally be disappointed, it will afford us at least some satisfaction to know, that the principles on which we have founded our opposition to the late acts of parliament, are the prin- ciples of justice and freedom, and of the British constitu- tion. If our righteous struggle shall be attended with misfortunes, we will reflect with exultation on the noble cause of them ; and while suffering unmerited distress, think ourselves superior to the proudest slaves. On the contrary, if we shall be reinstated in the enjoyment of those rights, to which we are entitled by the supreme and xincontrollable laws of nature, and the fundamental prin- ,ciples of the British constitution, we shall reap the glori- ous fruit of our labors ; and we shall, at the same time, give to the world and to posterity an instructive example,., that the cause of liberty ought not to be despaired of, and that a generous contention in that cause is not always unattended with success. The foregoing considerations have induced me to pub- lish a few remarks on the important question, with which I introduced this essay. Those who allege that the parliament of Great Britain . have power to make laws binding the American colonies, reason in .the following manner. " That there is and must LEGISLATIVE AUTHORITY OF BKITISH PAKLIAMENT. 507 be in every state a supreme, irresistible, absolute, uncon- trolled authority, in which the jura summi imperii, or the rights of sovereignty, reside ; " ^ " That this supreme power is, by the constitution of Great Britain, vested in the king, lords, and commons : " ^ " That, therefore, the acts of the king, lords, and commons, or, in other words, acts of parliament, have, by the British constitution, a binding force on the American colonies, they composing a part of the British empire." I admit that the principle, on which this argument is founded, is of great importance: its importance, however, is derived from its tendency to promote the ultimate end of all government. But if the application of it would, in any instance, destroy, instead of promoting, that end, it ought, in that instance, to be rejected : for to admit it, would be to sacrifice the end to the means, which are valuable only so far as they advance it. All men are, by nature, equal and free : ^ no one has a 1 4 Bl. Com. 48, 49. " Id. oO, 51. P The language of the Declaration of Independence is, "All men are created equal," and it declares that government derives all just powers from the consent of the governed. Considerable stress is laid upon the similarity of language (the words are not the same because not in the same language), and idea between the words of the Declaration and an expression of Voltaire ; but the idea was not new and certainly the lan- guage ought not to be credited to a writer in French when we liave this example of the use of almost identical language and language express- ing the identical idea, especially when the words are used in a published address to the American people, and by one who was a member of the convention which framed the instrument. It is strange that those who ascribe the language to Voltaire some- times misquote the same, e.g. Professor Hammond says: "The Declaration beginning with the statement that all men are born free and equal," etc., and adds (in language translated almost literally from the writings of Voltaire), 1 Ham. Blk. 276, thus seeming to credit Vol- taire with the invention of the language of the Declaration. But the trouble with his statement is that he himself misquotes the words and it is not easy to see how a translation can be literal — it may be liberal. Nothing could have been more prejudicial to the cause of the Ameri- 608 . LECTURES ON LAW. right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and. to increase the happiness of the governed, above what they could enjoy in an independ- ent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.-' ^ This rule is founded on the law of nature : it must con- trol every political maxim : it must regulate the legisla- ture itself.* The people have a right to insist that this rule be observed; and are entitled to demand a moral security that the legislature will observe it. If they have not the first, they are slaves ; if they have not the second, they are, every moment, exposed to slavery. For " civil liberty is nothing else but natural liberty, divested of that part which constituted the independence of individuals, by the authority which it confers on sovereigns, attended with a right of insisting upon their making a good use of their authority, and with a moral security that this right will have its effect." * cans tlian to have created an impression in England that they had imbibed notions of liberty from French sources, and nothing could be further from the fact. There is not the slightest ground for ascribing St, single idea of the Declaration of Independence to Voltaire. That document is a strictly English production, evolved in accord- ance with English principles of liberty and fortified with constant refer- ence to English precedent, and this address of our author, with the one next following, makes clear these grounds as does no other document of the period.] ^ The right of sovereignty is that of commanding finally — but in order to procure real felicity ; for if this end is not obtained, sovereignty ceases to be a legitimate authority. 2 Burl. 32, 3-3. P A comparisonof the second clause of the Declaration of Independence with this clause of the address discloses that every essential idea of the former is expressed in the latter except the right of separation which it "would have been injudicious to have then expressed.] * The law of nature is superior in obligation to any othei;. 1 Bl.Com.41. * 2 Burl. 19. LEGISLATIVE AUTHORITY OF BRITISH PARLIAMENT. 509 Let me now be permitted to ask — Will it ensure and increase the happiness of ^he American colonies, that the parliament of Great Britain should possess a supreme, irresistible, uncontrolled authority over them? Is such ■an authority consistent with their liberty? Have they any security that it will be employed only for their good ? Such a security is absolutely necessary. Parliaments are not infallible : they are not always just. The members, of whom they are composed, are human ; and, therefore, they may err ; they are influenced by interest ; and, therefore, they may deviate from their duty. The acts of the body must depend upon the opinions and disposi- tions of the members : 1;he acts of the body may, then, be the result of error and of vice. It is no breach of decency to suppose all this ; the British constitution sup- poses it : " it supposes that parliaments may betray their trust, and provides, as far as human wisdom can provide, that they may not be able to do so long, without a suffi- cient control." Without provisions for this purpose, the temple of British liberty, like a structure of ice, would instantly dissolve before the fire of oppression and despotic sway. 1 It will be very material to consider the several securi- ties, which the inhabitants of Great Britain have, that their liberty will not be destroyed by the legislature, in whose hands it is intrusted. If it shall appear, that the same securities are not enjoyed by the colonists ; the undeniable consequence will be, that the colonists are not under the same obligations to intrust their liberties into the hands of the same legislature; for the colonists are entitled to all ^ the privileges of Britons. We haA'e com- mitted no crimes to forfeit them : we have too much spirit 1 Bol. Diss, on Part. I. 11, 12, p. 167, 179. ■^ As the law is the birthright of every subject, so wlieresoever they go, tliey carry their laws with them. 2 P. Wms. 7'J. 510 LECTURES OK LAW. to resign them. We will leave our posterity as free as- our ancestors left us. To give to anything that passes in parliament the force of a law, the consent of the king, of the lords, and of the commons ^ is absolutely necessary .^ If, then, the inhab- itants of Great Britain possess a sufficient restraint upon any of these branches of the legislature, their liberty is secure, provided they be not wanting to themselves. Let us take a view of the restraints, which they have upon (he house of commons. They elect the members of that house. " Magistrates," says Montesquieu, ^ " are properly theirs, who have the nomination of them." The members of the house of com- mons, therefore, elected by the people, are the magistrates of the people ; and are bound by the ties of gratitude for the honor and confidence conferred upon them, to consult the interest of their constituents. The power of elections has ever been regarded as a point of the last consequence • to all* free governments- The independent exercise of that power is justly deemed the strongest bulwark of the British liberties.^ As such, it has always been an object of great attention to the legis- lature ; and is expressly stipulated with the prince in the 1 4 Ins. 25. 2 The commons of England have a great and considerable right in the government ; and a share in the legislature without whom no law passes. 2 Ld. Ray. 950. 3 Sp. L. b. 2, c. 2. ■* The Athenians, justly jealous of this important privilege, punished, with death, every stranger who presumed to interfere in the assemblies of the people. ^ The English freedom will be at an end whenever the court invades the free election of parliament. Eapin. A right that a man has to give his vote at the election of a jierson to represent him in parliament, there to concur to the making of laws, which are to bind his liberty and property, is a most transcendent thing and of a high nature. 2 Ld. Hay. 95-3. LEGISLATIVE AUTHORITY OF BRITISH PAKLIAMENT. 511 till of rights. All those are excluded "from voting, ^^'hose poverty is such, that they cannot live independent, and must therefore be subject to the undue influence of their superiors. Such are supposed to have no will of their own : and it is judged improper that they should vote in the representation of a free state.' What can exhibit in a more striking point of view, the peculiar care which has been taken, in order to render the election of members of parlia- ment entirely free ? It was deemed an insult upon the independent commons of Epgland, that their uninfluenced suffrages should be adulterated by those who were not at liberty to speak as they thought, though their interests and inclinations were the same. British liberty, it was thought, could not be effectually secured, unless those who made the laws were freely, and without influence, elected by those for whom they -were made. Upon this principle is reasonably founded the maxim in law — that every one, who is capable of exercising his will, is party, and pre- sumed to consent, to an act of parliament. For the same reason that persons, who live dependent upon the will of others, are not admitted to vote in elec- tions, those who are under age, and therefore incapable of judging ; those who are convicted of perjury or suborna- tion of perjury, and therefore- unworthy of judging ; and those who obtain their freeholds by fraudulent conveyances, and would therefore vote to serve infamous purposes, are all likewise excluded from the enjoyment of this great privilege. Corruption at elections is guarded against bv the strictest precautions, and most severe penalties. Every elector, before he polls, must, if demanded by a candidate or by two electors, take the oath against bribery, as pre- scribed by 2. Geo. 2. c. 24. Officers of the excise, of the customs, and of the post offices ; officer's concerned in the duties upon leather, soap, paper, striped linens imported, hackney coaches, cards and dice, are restrained from inter- biz LECTURES OK LAW. feiing in elections, under the penalty of one hundred pounds, and of being incapable of ever exercising any office of trust under the king. Thus is the freedom of elections secured from the ser- vility, the ignorance, and the corruption of the electors ; and from the interpositions of officers depending immedi- ately upon the crown. But this is not all. Provisions, equally salutary, have been made concerning the qualifica- tions of those who shall be elected. All imaginable care has been taken, that the commons of Great Britain maj" be neither awed, nor allured, nor deceived into any nomi- nation inconsistent with their liberties. It has been adopted as a general maxim, that the crown will take advantage of every opportunity of extending its^ prerogative, in opposition to the privileges of the people ; that it is the interest of those whp have pensions or ofiices at will from the crown, to concur in all its measures ; that mankind in general will prefer their private interest to the good of their country ; and that, consequently, those who enjoy such pensions or offices are unfit to represent a free nation, and to have the care of their liberties committed to their hands.^ All such officers or pensioners are de- clared incapable of being elected members of the house of commons. But these are not the only checks which the commons of Great Britain have, upon the conduct of those whom they elect to represent thein in parliament. The interest of the representatives is the same with that of their con- stituents. Every measure, that is prejudicial to the nation, must be prejudicial to them and their posterity. They cannot betray thejr electors, without, at the same time, injuring themselves. They must join in bearing the bur- then of every oppressive act ; and participate in the happy effects of every wise and good law. Influenced by these ^ There are a few exceptions in the case of officers at wilL LEQISLATIVE AT7TH0KITY OF BKITISH PARLIAMENT. 513 considerations, they will seriously and with attention ex- amine every measure proposed to them ; they will behold it in every light, and extend their views to its most distant consequences. If, after the most mature deliberation, they find it will be conducive to the welfare of their country^ they will support it with ardor : if, on the contrary, it ap- pears to be of a dangerous and destructive nature, they will oppose it with firmness. Every social and generous affection concurs with their interest, in animating the representatives of the commons of Great Britain to an honest and faithful discharge of their important trust. In each patriotic effort, the heart- felt satisfaction of having acted a worthy part vibrates in delightful unison with the applause of their countrymen, who never fail to express their warmest acknowledg- ments to the friends and benefactors of their country. How pleasing are those rewards ! How much to be pre- ferred to that paltry wealth, which is sometimes procured by meanness and treachery ! I say sometimes ; for mean- ness and treachery do not always obtain that pitiful reward. The most useful ministers to the crown, and therefore the mibst likely to be employed, especially in great emergencies, are those who are best beloved by the people ; and those only are beloved by the people, who act steadily and uni- formly in support of their liberties. Patriots, therefore, have frequently, and especially upon important occasions, the best chance of being advanced to offices of profit and power. An abject compliance with the will of an imperi- ous prince, and a ready disposition to sacrifice every duty to his pleasure, are sometimes, I confess, the steps, by which only men can expect to rise to wealth and titles. Let us suppose that, in this manner, they are successful in attaining them. Is the despicable prize a sufficient recom- pense, for submitting to the infamous means by which it was procured, and for the torturing remorse with which Ol4 LECTURES ON LAW. the possession of it must be accompanied ? Will it com- pensate for the merited curses of the nation and of pos- terity ? These must be very strong checks upon the conduct of every man, who is not utterly lost to all sense of praise and blame. Few will expose themselves to the just abhorrence of those among whom they live, and to the excruciating sensations which such abhorrence must pro- duce. But lest all these motives, powerful as they are, should be insufficient to animate the representatives of the nation to a vigorous' and upright discharge of their duty, and to restrain them from yielding to any temptation that would incite them to betray their trust ; their constituents have still a farther security for their liberties in the frequent election of parliaments. At the expiration of every par- liament, the people can make a distinction between those who have served them well, and those who have neglected or betrayed their interest : they can bestow, unasked, their suffrages upon the former in the new election ; and can mark the latter with disgrace, by a mortifying refusal. The constitution is thus frequently renewed, and drawn back, as it were, to its first principles ; which is the most effectual method of perpetuating the liberties of a state. The people have numerous opportunities of displaying their just importance, and of exercising, in person, these natural rights. The representatives are reminded whose creatures they are ; and to whom they are accountable for the use of that power, which is delegated unto them. The first maxims of jurisprudence are ever kept in view — that all power is derived from the people — that their happiness is the end of government. Frequent new parliaments are a part of the British con- stitution : by them only, the king can know the immediate sense of the nation. Every supply, which they grant, is LEGISLATIVE AUTHORITY OF BRITISH PARLIAMENT. 515 justly to be considered as a testimony of the loyalty and affection, which the nation bear to their sovereign ; and by this means, a mutual confidence is created between the king and his subjects. How pleasing must such an inter- course of benefits be ! How must a father of his people rejoice in such dutiful returns for his paternal care ! With what ardor must his people embrace every opportunity of giving such convincing proofs, that they ai-e not insensible of his wise and indulgent rule ! Long parliaments have always been prejudicial to the prince, who summoned them, or to the people, who elected them. In that called by King Charles I. in the year 1640, the commons proceeded at first, with vigor and a true pat- riotic spirit, to rescue the kingdom from the oppression under which it then groaned — to retrieve the liberties of the people, and establish them on the surest foundations — and to remove or prevent the pernicious consequences, which had arisen, or which, they dreaded, might arise from the tyrannical exercise of prerogative. They abolished the courts of the star chamber and high commission : they reduced the forests to their ancient bounds : they repealed the oppressive statutes concerning knighthood : they de- clared the tax of ship money to be illegal : they presented the petition of rights, and obtained a ratification of it from the crown. But when the king unadvisedly passed an act to continue them till such time as they should please to dissolve themselves, how soon — ^how fatally did their conduct change ! In what misery did they involve their country ! Those very men, who, while they had only a constitutional power, seemed to have no other aim but to secure and improve the liberty and felicity of their constit- uents, and to render their sovereign the glorious ruler of a free and happy people — •those very men, after they be- came independent of the king and of their electors, sacri- ficed both to that inordinate power which had been given 33 516 LECTURES 03S" LAW. theni. A regard for the public was now no longer the ypring of their actions : their only view was to aggrandize th6mselves, and to establish their grandeur on the ruins of their country. Their views unhappily were accomplished. They overturned the constitution from its very foundation; and converted into rods of oppression those instruments of power, which had been put into their hands for the wel- i'aie of the state : but which those, who had formerly given theui, could not now reassume. What an instruc- tive example is this ! How alarming to those, who have no influence over their legislators — who have no security but that the power, which was originally derived from the people, and was delegated for their preservation, may be abused for their destruction ! Kings are not the only tyrants: the conduct of the long parliament will justify me in adding, that kings are not the severest tyrants. At the restoration, care was taken to reduce the house of commons to a proper dependence on the king ; but im- mediately after their election, they lost all dependence upon their constituents, because they continued during the pleas- ure of the crown. The effects soon dreadfully appeared in the long parliament under Charles the Second. They seemed disposed ingloriously to surrender those liberties, for which their ancestors had planned, and fought, and bled : and it was owing to the wisdom and integrity of two 1 virtuous ministers of the crown, that the commons of England were not reduced to a state of slavery and wretchedness by the treachery of their own representatives, whom they had indeed elected, but whom they could not remove. Secuie of their seats, while they gratified the crown, the members bartered the liberties of the nation for places and pensions ; and threw into the scale of preroga- tive all that weight, which they derived from the people in order to counterbalance it. 1 The Earls of Clareadon and Southampton. LEGISLATIVE AUTHORITY OF BRITISH PARLIAMENT. 517 It \\as not till some years after the revolution, that the people could rely on the faithfulness of their representa- tives, or punish their perfidy. By the statute 6 W. & M. c. 2, it was enacted, that parliaments should not continue longer than three years. The insecure situation of the first prince of the Hanoverian line, surrounded with rivals and with enemies, induced the parliament, soon after his accession to the throne, to prolong this term to that of seven years. Attempts have, since that time, been fre- quently made tQ reduce the continuance of parliaments to the former term : and such attempts have always been well received by the nation. Undoubtedly they deserve such reception : for long parliaments will naturally forget their dependence on the people : when this dependence is forgotten, they will become corrupt : " Whenever they become corrupt, tlie constitution of England will lose its liberty — it will perish." ^ Such is the provision made by the laws of Great Britain, that the commons should be faithfully represented: provi- sion is also made, that faithful representatives should not labor for their constituents in vain. The constitution is formed in such a manner, that the house of common^ are able as well as willing to protect and defend the liberties intrusted to their care. The constitution of Great Britain is that of limited monarchy; and in all limited monarchies, the power of preseiTing the limitations must be placed somewhere. 1 Mont Sp. L. b. 11, c. 6. If the legislative body were perpetual; or might last for the life of the prinde who convened them, as formerly; and were so to be supplied, by occasionally filling the vacancies with new representatives; in these cases, if it were once corrupted, the evil would be past remedy: but when different bodies succeed each other, if the people see cause to disapprove of the present, they may rectify its faults in the next. A legislative assembly also, which is sure to be separated again, will think themselves bound, in interest as well as duty, to make only such laws as are good. 1 Bl. Com. 189. 518 LECTURES ON LAW. During the reigns of the first Norman princes, this power seems to have resided in the clergy and in the barons by turns. But it was lodged very improperly. The clergy, zealous only for the dignity and pre-eminence of the church, neglected and despised the people, whom, with the soil they tilled, they would willingly have considered as the patrimony of St. Peter. Attached to a foreign jurisdic- tion, and aspiring at an entire independence of the civil powers, they looked upon the prerogative of the crown as so many obstacles in the way of their favorite scheme of supreme ecclesiastical dominion ; and therefore seized, with eagerness, every occasion of sacrificing the interests of their sovereign to those of the pope. Enemies alike to their king and to their country, their sole a,nd unvaried aim was to reduce both to the most abject state of submis- sion and slavery. The means employed by them to ac- complish their pernicious purposes were, sometimes, to work upon the superstition of the people, and direct it against the power of the prince ; and, at other times, to work upon the superstition of the prince, and direct it against the liberties of the people. The power of preserving the limitations of monarchy, for the purposes of liberty, was not more properly placed in the barons. Domineering and turbulent, they op- pressed their vassals, and treated them as slaves ; they op- posed their prince, and were impatient of every legal re- straint. Capricious and inconstant, they sometimes abetted the king in his projects of tyranny ; and, at other times, excited the people to insurrections and tumults. For these reasons, the constitution was ever fluctuating from one extreme to another; now despotism — now anarchy prevailed. But after the representatives of the commons began to sit in a separate house ; to be considered as a distinct branch of the legislature; and, as such, to be invested LEGISLATIVE AtTTHORITY OF BEITISH PARLIAMENT. 519 with separate and independent powers and privileges ; then the constitution assumed a very different appearance. Having no interest contrary to that of the people, from among whom they were chosen, and with whom, after the session, they were again to mix, they had no views incon- sistent with the liberty of their constituents, and there- fore could have no motives to betray it. Sensible that prerogative, or a discretionary power of acting where the laws are silent, is absolutely necessary, and that this pre- rogative is most properly intrusted to the executor of the laws, they did not oppose the exercise of it, while it was directed towards the accomplishment of its original end : but sensible likewise, that the good of the state was this original end, they resisted, with vigor, every arbitrary measure, repugnant to law, and unsupported by maxims of public freedom or utility. The checks, which they possessed over prerogative, were calm and gentle — operating with a secret, but effect- ual force — unlike the impetuous resistance of factious barons, or the boisterous fulminations of ambitious prel- ates. ' One of the most ancient maxims of the English law is, that no freeman can be taxed at pleasure.^ But taxes on freemen were absolutely necessary to defray the extraor- dinary charges of government. The consent of the free- men was, therefore, of necessity to be obtained. Numer- ous as they were, they could not assemble to give their consent in their proper persons ; and for this reason, it was directed by the constitution, that they should give it by their representatives, chosen by and out of themselves. Hence the indisputable and peculiar privilege of the house of commons to grant taxes.^ 1 1 Bac. 568. ^Note. It is said in divers records, " per communitatem Angliae nobis concess." Because all grants of subsidies or aids by parliament do be- 620 LECTUKES ON LAW. This is the source of that mild but powerful influence, which the commons of Great Britain possess over the crown. In this Consists their security, that prerogative, intended for their benefit, will never be exerted for. tlieii- ruin. By calmly and constitutionally refusing supplies, or by granting theln only on certain conditions, they have corrected the extravagancies of some • princes, and have tempered the headstrong nature of others; they liave checked the progress of arbitrary power, and have supported with honor to themselves, and with advantage to the nation, the character of grand inquisitors of the realm. The proudest ministers of the proudest monarchs have trembled at their censures ; and have appeared at the bar of the house, to give an account of their conduct, and ask pardon for their faults. Those princes, who have favored liberty, and thrown themselves upon the affections of their people, have ever found that liberty which they favored, and those affections which they cultivated, the firmest foundatioiis of their tlrrone, and the most solid support of their power. The purses of their people have been ever open to supply their exigencies : their swords have been ever ready to vindicate their honor. On the contrary; those princes, who, insensible to the glory and advantage of ruling a free people, have preferred to a willing obedience the abject submission of slaves, have ever experienced, that all endeavors to render themselves absolute were but so many steps to their own downfall. Such is the admirable temperament of the British con- stitution ! such the glorious fabric of Britain's liberty — the pride of her citizens — the envy of her neighbors — planned by her legislators — erected by her patriots — maintained entire by numerous generations past ! may gin in the house of commons, and first granted by them : also because in effect the whole profit which the king reapeth, doth come from the com- mons. 4 Ins. 29. LEGISLATIVE AUTHORITY OF BRITISH PARLIAMENT. 521 it be maintained entire by numerous generations to come Can the Americans, who are descended from British ancestors, and inherit all their rights, be blamed — can they be blamed by their brethren in Britain — for claiming still to enjoy those rights ? But can they enjoy them, if they are bound by the acts of a British parliament ? Upon what principle does the British parliament found their power ? Is it founded on the prerogative of the king ? His prerogative does not extend to make laws to bind any of his subjects. Does it reside in the house of lords? The peers are a collective, and not a representative body. If it resides anywhere, then, it must reside in the house of commons. Should any one object here, that it does not reside in the house of commons only, because that house cannot make laws without the consent of the king and of the lords ; the answer is easy. Though the concurrence of all the branches of the legislature is necessary to every law; yet the same laws bind different persons for different reasons, and on different principles. The king is bound, because he assented to them. The lords are bound, because they voted for them. The representatives of the commons^ for the same reason, bind themselves, and thoSe whom they represent. If the Americans are bound neither by the assent of the king, nor by the votes of the lords, to obey acts of the British parliament, the sole reason why they are bound is, because the representatives of the commons of Great Britain have given their suffrages in favor of those acts.^ -This is allowed even by the advocates for parliamentary power; who account for its extension over the colonies, upon the very absurd princi- ple of their being virtually* represented in the house of commons. [•Thtd was an idea advanced by Lord Mansfield in a speech of Feb. 3,1766, replied to by Chatham.] 522 LECTURES ON LAW. But are the representatives of the commons of Great Britain the representatives of the Americans ? Are they fleeted by the Americans ? Are they such as the Ameri- cans, if they had the power of election, would probably elect ? Do they know the interest of the Americans ? Does their own interest prompt them to pursue the interest of the Americans ? If they do not pursue it, have the Americans power to punish them ? Can the Americans remove unfaith- ful members at every new election ? Can members, whom the Americans do not elect ; with whom the Americans are not connected in interest ; whom the Americans can- not remove ; over whom the Americans have no influence — can such members be styled, with any propriety, the magis- trates of the Americans ? Have those, who are bound by the laws of magistrates not their own, any security for the enjoyment of their absolute rights — those rights, " which every man is entitled to enjoy, whether in society or out of it?"^ Is it probable that those rights will be main- tained ? Is it " the primary end of government to main- tain them ? " ^ Shall this primary end be frustrated by a political maxim intended to promote it ? But from what source does this mighty, this uncon- trolled authority of the house of commons flow ? From the collective body of the commons of Great Britain. This authority must, therefore, originally reside in them ; for whatever they convey to their representatives, must ultimately be in themselves.* And have those, whom we have hitherto been accustomed to consider as our fellow- subjects, an absolute and unlimited power over us ? Have they a natural right to make laws, by which we may be 1 1 Bl. Com. 123. 2 1 Bl. Com. 124. -' It is self-evident that the power, with relation to the part we bear in the legislation, is absolutely, is solely in the electors. We have' no legis- lative authority but what we derive from them. Debates of the Com- mons, vol. (i, p. 7-'. LEGISLATIVE ATJTHOKITY OF BEITISH PARLIAMENT. 523 deprived of pur properties, of our liberties, of our lives? By what title do they claim to be our masters ? What act of ours has rendered us subject to those, to whom we were formerly equal ? Is British freedom denominated from the soil, or from the people of Britain ? If from the latter, do they lose it by quitting the soil ? Do those, who embark, freemen, in Great Britain, disembark, slaves, in America ? Are those, who fled from the oppression of regal and ministerial tyranny, now reduced to a state of vassalage to those, who, then, equally felt the same op- pression ? Whence proceeds this fatal change ? Is this the return made us for leaving our friends and our coun- try — -for braving the danger of the deep — for planting a wilderness, inhabited only by savage men and savage beasts — for extending the dominions of the British crown— for in- creasing the trade of the British merchants — for augment- ing the rents of the British landlords — for heightening the wages of the British artificers ? Britons should blush to make such a claim : Americans would blush to own it. It is not, however, the ignominy only, but the danger also, with which we are threatened, that affects us. The many and careful provisions which are made by the British ■constitution, that the electors of members of parliament may be prevented from choosing representatives, who would betray them ; and that the representatives may be prevented from betraying their constituents with impunity, sufficiently evince, that such precautions have been deemed absolutely necessary for securing and maintaining the system of British liberty. How would the commons of Great Britain startle at a proposal, to deprive them of their share in the legislature, by rendering the house of commons independent of them ! With what indignation would they hear it ! What resent- ment would they feel and discover against the authors of it ! Yet the commons of Great Britain would suffer less ■524 LECTURES ON LAW. inconvenience from the execution of such a proposal, than the Americans will suffer from tlie extension of the legis- lative authority of parliament over them. The members of parliament, their families, their friends, their posterity must be subject, as well as others, to the laws. Their interest, and that of their families, friends, and posterity, cannot be different from the interest of the rest of the nation. A regard to the former will, therefore, ■direct to such measures as must promote the latter. But is this the case with respect to America ? Are the legislators of Great Britain subject to the laws which are made for the colonies ? Is their interest the same with that of the •colonies ? If we consider it in a large and comprehensive view, we shall discern it to be undoubtedly the same ; but few will take the trouble to consider it in that view ; and of those who do, few will be influenced b}' the consider- "ation. Mankind are usually more affected with a near though inferior interest, than with one that is superior, but placed at a greater distance. As the conduct is regu- lated by the passions, it is not to be wondered at, if they secure the former, by measures which will forfeit the la1> ter. Nay, the lattqr will frequently be regarded in the same manner as if it were prejudicial to them. It is with I'egret that I produce some late regulations of parliament as proofs of what I have advanced. We have experi- «nced what an easy matter it is for a minister, with an ordinary share of art, to persuade the parliament and the people, that taxes laid on the colonies will ease the burthens of the mother country ; which, if the matter is considered in a proper light, is, in fact, to persuade them, that the stream of national riches will be increased by closing up the fountain, from which they flow. As the Americans cannot avail themselves of that check, which interest puts upon the, members of parliament, and which would operate in favor of the commons of Great LEGISLATIVE AUTHORITY OF BRITISH PARLIAMENT. 525 liritain, though they possessed no power over tlie legislat>- lire ; so the love of reputation, which is a powejf ul in- •citement to the legislators to promote the welfai'e, and obtain the approbation, of those among whom they live, and whose praises or censures will reach and affect them, may liave a contrary operation witli regard to the colonies. It may become popular and reputable at home to oppress us. A candidate may recommend himself at his election "by recounting the many successful instances, in whicli lie has sacrificed the interests of America to those of Great Britain. A member of the house of commons may plume himself upon his ingenuity in inventing schemes to serve the mother country at the expense of the colonies ; and may boast of their impotent resentment against him on that account. Let us pause here a little. — Does neither the love of gain, the love of praise, nor the love of honor influence the members of the British parliament in favor of the Americans ? On what principles, then— on what motives of action, can we depend for the security of our liberties, of our properties, of everything dear to us in life, of life itself ? Shall we depend on their veneration for the dic- tates of natural justice ? A very little share of experience in the world — a very little degree of knowledge in the history of men, will sufficiently convince us, that a regard to justice is by no means the ruling principle in human nature. He would discover himself to be a very sorry statesman, who would erect a system of jurisprudence upon that slender foundation. " He would make," as my Lord Bacon says, " imaginary laws for imaginary common- wealths ; and his discourses, like the stars, would give little light, because they are so high." ^ But this is not the worst that can justly be said con- ■cerning the situation of the colonies, if they are bound by ' 2 Ld. Bac. .537. 526 LECTURES ON LAW. the acts of the British legislature. So far are those powerful springs of action, which we have mentioned, from interesting the membei's of that legislature in "Our favor, that, as has been already observed, we have the greatest reason to dread their operation against us. While the' happy commons of Great Britain congratulate them- selves upon the liberty which they enjoy, and upon the jjrovisions — infallible, as far as they can be rendered so by liuman wisdom — which are made for perpetuating it to their latest posterity ; the unhappy Americans have reason to bewail the dangerous situation to which they are re- duced ; and to look forward, with dismal apprehension, to tliose future scenes of woe, which, in all probability, will open upon their descendants. What has been already advanced will suffice to show, that it is repugnant to the essential maxims of jurispru- dence, to the ultimate end of all governments, to the genius of the British constitution, and to the liberty and happiness of the colonies, that they should be bound by the legislative authority of the parliament of Great Bri- tain. Such a doctrine is not less repugnant to the voice of her laws. In order to evince this, I shall appeal to some authorities from the books of the law, which show ex- pressly, or by a necessary implication, that the colonies are not bound by the acts of the British parliament ; be- cause they have no share in the British legislature. The first case I shall mention was adjudged in the second year of Richard the Third. It was a solemn deter- mination of all the judges of England, met in the ex- chequer chamber, to consider whether the people in Ireland were bound by an act of parliament made iu England. They resolved, " that they were not, as to such things as were done in Ireland ; but that what they did out of Ire- land must be conformable to the laws of England, be- cause they were the subjects of England. Ireland," said LEGISLATIVE AUTHOKITY OF BKITISH PARLIAMENT. 527 •they, " has a parliament, who make laws ; and our stat- utes do not bind them ; because they do not gend knights ■to parliament: but their persons are the subjects of the king, in the same manner as the inliabitants of Calais, Gascoigne, and Guienne." ^ This is the first case which we lind in the books upon this subject; and it deserves to be examined with the most minute attention. 1. It appears, that the matter under consideration was deemed, at that time, to be of the greatest importance : for ordinary causes are never adjouined into the ex- chequer chamber ; only such are adjourned there as are of uncommon weight, or of uncommon difficulty. " Into the exchequer chamber," says my Lord Coke,^ " all cases of difficulty in the king's bench, or common pleas, etc., are, and of ancient time have been, adjourned, and there de- bated, argued, and resolved, by all the judges of England and barons of the exchequer." This court proceeds with the greatest deliberation, and upon the most mature re- flection. The case is first argued on both sides by learned counsel; and then openly on several days, by all the judges. Resolutions made with so much caution, and founded on so much legal knowledge, may be relied on as the surest evidences of what is law. 2. It is to be observed, that the extent of the legislative authority of parliament is the very point of the adjudica- tion. The decision was not incidental or indigested : it was not a sudden opinion, unsupported by reason and argument: it was an express and deliberate resolution of that veiy doubt, which they assembled to resolve. 3. It is very observable, that the reason, which those reverend sages of the law gave, why the people in Ireland were not bound by an act of parliament made in England, was the same with that, on .which the Americans have 14 Mod. 225; 7 Rep. 22 b., Calvin's case. ^4 Ins. 110. 528 LECTUKES OX LAW. founded their opposition to tlie late statutes made con- cerning them. The Irish did not send members to parlia- ment; and, therefore, they were not bound by its acts. From hence it undeniably appears, that parliamentary authority is derived solely from representation — that those, who are bound by acts of parliament, are bound for this only reason, because they are represented in it. If it were not the only reason, parliamentary authority might subsist independent of it. But as parliamentary authority fails wherever this reason does not operate, parliamentary au- thority can be founded on no other principle. The law never ceases, but when the reason of it ceases also. 4. It deserves to be remarked, that no exception is made of any statutes, which bind those who are not repre- sented by the makers of them. The resolution of the judges extends to every statute : they s&y, without Umita- tion — ^" our statutes do not bind them." And indeed the resolution ought to extend to every statute : because the reason, on which it is founded, extends to every one. If ^ a jjerson is bound only because he is represented, it must certainly follow that wherever he is not represented he is not bound. No sound argument can be offered, why one statute should be obligatory in such circumstances, and not another. If we cannot be deprived of our property by those, whom we do not commission for that purpose ; can' we, without any such commission, be deprived, by them, of our lives? Have those a right to imprison and gibbet us, who have not a right to tax us ? 5. From this authority it follows, that it is by no means a rule, that the authority of parliament extends to all the subjects of the crown. The inhabitants of Ireland were the subjects of the king as of his crown of England ; but it is expressly resolved, in the most solemn manner, that the inhabitants of Ireland are not bound by the statutes of England. Allegiance to the king and obedience to the LEGISLATIVE AUTHORITY OP BRITISH PARLIAMENT. 529' parliament are founded on very different principles. The former is founded on protection ; the latter, on representa- tion. An inattention to this difference has produced, I apprehend, much uncertainty and confusion in our ideas concerning the connection, which ought to subsist between. Great Britain and the American colonies. t). The last observation which I shall make on this case- is, that if the inhabitants of Ireland are not bound by acts- of parliament made in England, a fortiori, the inhabitants- of the American colonies are not bound by them. There are marks of the subordination of Ireland to frreat Britain,, which cannot be traced in the colonies. A writ of error lies from the king's bench in Ireland,^ to the king's bench,, and consequently to the house of lords, in England ; by which means the former kingdom is subject to the control of the courts of justice of the latter kingdom. But a writ of error does not lie in the king's bench, nor before the- house of lords, in England, from the colonies of America.. The proceedings in their courts of justice can be reviewed and controlled only on an appeal to the king in council.^ The foregoing important decision, favorable to the lib- erty of all the dominions of the British crown that are not represented in the British Parliament, has been corrobo- rated by subsequent adjudications. I shall mention one that was given in the king's bench, in the fifth year of King William and Queen Mary, between Blankard and Galdy.s The plaintiff was provost marshal of Jamaica, and by articles, granted a deputation of that office to the defend- ant, under a yearly rent. The defendant gave his bond for the performance of the agreement : and an action of debt was brought upon that bond. In bar of the action, the defendant pleaded the statute of 5 Ed. 6, made against buying and selling of offices that concern the administra- M Ins. 356. - 1 Bl. Com. lOS, 251. ^ 4 Mod. 215, Salk. 411. 530 LECTURES ON LAW. tion of justice, and averred that this office concerned the administration of justice in Jamaica, and that, by virtue of that statute, both the bond and articles were void. To this plea the plaintiff replied, that Jamaica was an island in- habited formerly by the Spaniards, " that it was conquered by the subjects of the kingdom of England, commissioned by legal and sufficient authority for that purpose ; and that since that conquest its inhabitants were regulated and governed by their own proper laws and statutes, and not by acts of parliament or the statutes of the kingdom of Eng- land." The defendant, in his rejoinder, admits that, be- fore the conquest of Jamaica by the English, the inhabitr ants were governed by their own laws, but alleges that *' since the conquest it was part of the kingdom of England, and governed by the laws and statutes of the kingdom of England, and not by laws and statutes peculiar to the island." To this rejoinder the plaintiff demurred, and the defendant joined in demurrer. Here was a cause to be determined judicially upon this single question in law — Were the acts of parliament or statutes of England in force in Jamaica ? It was argued on the opposite sides by lawyers of the greatest eminence, before Lord Chief Justice Holt (a name renowned in the law) and his brethren, the justices of the king's bench. They unanimously gave judgment for the plaintiff ; and, by that judgment, expressly determined — That the acts of parliament or statutes of England were not in force in Jamaica. This decision is explicit in favor of America ; for whatever was resolved concerning Jamaica is equally applicable to every American colony. Some years after the adjudication of this case, another was determined in the king's bench, relating to Virginia ; in which Lord Chief Justice Holt held, that the laws of England did not extend to Virginia.^ iSalk. 666. LEGISLATIVE AUTHORITY OF BRITISH PARLIAMENT. 531 I must not be so uncandid as to conceal, that in Calvin's case, where the above-mentioned decision of the judges in the exchequer chamber, concerning Ireland, is quoted, it is added, by way of explanation of that authority, — " which is to be understood, unless it (Ireland) be especially named." Nor will I conceal that the same exception^ is taken notice of, and seems to be allowed, by the judges in the other cases relating to America. To any objection that may, hence, be formed against my doctrine, I auswer, in the words of the very accurate Mr. Justice Foster, that " gen- eral rules thrown out in argument, and carried farther than the true state of the case then in judgment requireth, have, I confess, no great weight with me."^ The question before the judges in the cases I have rea- soned from, was not how far the naming of persons in an act of parliament would affect them ; though, unless named, they would not be bound by it : the question was, whether the legislative authority of parliament extended over the inhabitants of Ireland or Jamaica or Virginia. To the resolution of the latter question the resolution of the for- mer was by no means necessary, and was, therefore, wholly impertinent to the point of the adjudication. But farther, the reason assigned for the resolution of the latter question is solid and convincing : the American colonies are not bound by the acts of the British parlia- ment, because they are not represented in it. But what reason can be assigned why they should be bound by those acts, in which they are specially named ? Does naming them give those, who do them that honor, a right to rulp over them ? Is this the source of the supreme, the abso- lute, the irresistible, the uncontrolled authority of parlia- ment ? These positions are too absurd to be alleged ; and 1 This exception does not seem to be taken in the case of 2d KLchard III. which was the foundation of all the subsequent cases. Tost. 313. 34 632 LECTURES ON LAW. a thousand judicial determinations in their favor would never induce one man of sense to subscribe his assent to them.^ The obligatory force of the British statutes upon the colonies, when named in them, must be accounted for, by the advocates of that power, upon some other principle. In my Lord^ Coke's Reports, it is said, " that albeit Ireland be a distinct dominion, yet, the title thereof being by con- quest, the same, by judgment of law, may be, by express words, bound by the parliaments of England." In this instance, the obligatory authority of the parliament is plainly referred to a title by conquest, as its foundation and original. In the instances relating to the colonies, this authority seems to be referred to the same source ; for any one, who compares what is said of Ireland, and other conquered countries, in Calvin's case, with what is said of America, in the adjudications concerning it, will find that the judges, in determining the latter, have grounded their opinions on the resolutions given in the former.^ It is foreign to my purpose to inquire into the 1 Where a decision is manifestly absurd and unjust, such a sentence is not law. 1 Bl. Com. 70. The legality of the opinion "that the people in Ireland were bound by the statutes of England, when particularly named by them," seems afterwards to have been doubted of by Lord Coke himself, in another place of his works. After having mentioned the resolution in the ex- chequer chamber in the time of Richard the Third, and having taken notice that question is made of it in some of the books, and particularly in Calvin's case, he says, "that the question concerning the binding force of English statutes over Ireland is now by common experience and opinion without any scruple resolved ; that the acts of parliament made in England, since the act of the 10th H. 7 (he makes no exceptions), do not bind them in Ireland ; but all acts made in England before 10, H. 7, hy the said act made in Ireland An. 10, H. 7, c. 22, do bind them in Ire- land." 12 Rep. 111. 2 It is plain that Blackstone understood the opinion of the judges — that the colonies are bound by acts of the British parliament, if named in them — ^to be founded on the principle of conquest. It will not be im- LEGISLATIVE AUTHORITY OP BRITISH PARLIAMENT. 538 reasonableness of founding the authoritj' of the British parliament over Ireland, upon the title of conquest, though I believe it would be somewhat difficult to deduce it satis- factorily in this manner. It will be sufficient for me to show, that it is unreasonable, and injurious to the colonies, to extend that title to them. How came the colonists to be a conquered people ? By whom was the conquest over them obtained ? By the house of commons ? By the constituents of that house ? If the idea of conquest must be taken into consideration when we examine into the title by which America is held, that idea, so far as it can operate, will operate in favor of the colonists, and not against them. Permitted and commissioned by the crown, they undertook, at their own expense, expedi- tions to this distant country, took possession of it, planted it, and cultivated it. Secure under the protection of their king, they grew and multiplied, and diffused British freedom and British spirit, wherever they came. Happj-^ in the enjoyment of liberty, and in reaping the fruits of their toils; but still more happy in the joyful prospect of transmitting their liberty and their fortunes to the latest posterity, they inculcated to their children the warmest sentiments of loyalty to their sovereign, under whose proper to insert his commentary upon the resolutions respecting Amer- ica. " Besides these adjacent islands (Jersey, etc.), our more .distant plantations in America and elsewhere are also, in some respects, subject to the English laws. Plantations, or colonies in distant countries, are eitlier such where the lands are claimed in right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country ; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. Our American plantations are principally of tliis latter sort ; being obtained in the last century, either hy right of conquest, and driving out the natives (with what natural justice I shall not at present inquire) or by treaties." 1 Bl. Com. 106, 107. Lord Chief Justice Holt, in a case above cited, calls Virginia a con- quered country. Salk. 666. 534 LECTTJEES ON LAW. auspices they enjoyed so many blessings, and of affection and esteem for the inhabitants of the mother country, with whom they gloried in being intimately connected. Les- sons of loyalty to parliament, indeed, they never gave : they never suspected that such unheard-of loyalty would be required. Thej"^ never suspected that their descendants would be considered and treated as a conquered people ; and therefore they never taught them the submission and abject behavior suited to that character. I am sufficiently aware of an objection, that will be made to what I have said concerning the legislative au- thority of the British parliament. It will be alleged, that I throw off all dependence on Great Britain. This ob- jection will be held forth, in its most specious colors, by those, who, from servility of soul, or from mercenary con- siderations, would meanly bow their necks to every exer- tion of arbitrary power : it may likewise alarm some, who entertain the most favorable opinion of the connection between Great Britain and her colonies ; but who are not sufficiently acquainted with the nature of that connection, which is so dear to them. Those of the first class, I hope, are few ; I am sure they are contemptible, and deserve to have very little regard paid to them : but for the sake of those of the second class, who may be more numerous, and whose laudable principles atone for their mistakes, I shall take some pains to obviate the objection, and to show that a denial of the legislative authority of the British parliament over America is by no means inconsistent •with that connection, which ought to subsist between the mother country and her colonies, and which, at the first settlement of those colonies, it was intended to maintain between them ; but that, on the contrary, that connection would be entirely destroyed by the extension of the power of parliament over the American plantations. Let us examine what is meant by a dependence on Great LEGISLATIVE AUTHORITY OF BRITISH PARLIAMENT. 535 Britain : for it is always of importance clearly to define the terms that we use. Blackstone, who, speaking of the colonies, tells us, that " they are no part of the mother country, but distinct (though dependent) dominions,"^ explains dependence in this manner. " Dependence is very little else, but an obligation to conform to the will or law of that superior person or state, upon which the inferior depends. The original and true ground of tliis superiority, in the case of Ireland, is what we usually call, though somewhat improperly, the right of con- quest; a right allowed by the law of nations, if not by that of nature ; but which, in reason and civil policy, can mean nothing more, than that, in order to put an end to hostilities, a compact is either expressly or tacitly made between the conqueror and the conquered, that if they will acknowledge the victor for their master, he will treat them for the future as subjects, and not as enemies." ^ The original and true ground of the superiority of Great Britain over the American colonies is not shown in any book of the law, unless, as I have already observed, it be derived from the right of conquest. But I have proved, and I hope satisfactorily, that this right is altogetlier inap- plicable to the colonists. The original of the superiority of Great Britain over the colonies is, then, unaccounted for; and when we consider the ingenuity and pains which have lately been employed at home on this subject, we may justly conclude, that the only reason why it is not accounted for, is, that it cannot be accounted for. The superiority of Great Britain over the colonies ought, there- fore, to be rejected ; and the dependence of the colonies upon her, if it is to be construed into " an obligation to conform to the will or law of the superior state," ought, in this sense, to be rejected also. 1 1 Bl. Com. 107. ^ M. 103. 536 LECTURES OK LAW. My sentiments concerning this matter are not singular. They coincide with the declarations and remonstrances of the colonies against the statutes imposing taxes on them. It was their unanimous opinion, that the parliament have no right to exact obedience to those statutes ; and, con- sequently, that the colonies aie under no obligation to obey them. The dependence of the colonies on Great Britain was denied, in those instances ; but a denial of it in those instances is, in effect, a denial of it in all other instances. For, if dependence is an obligation to conform to the will or law of the superior state, any exceptions to that obligation must destroy the dependence. If, there- fore, by a dependence of the colonies on Great Britain, it is meant, that they are obliged to obey the laws of Great Britain, reason, as well as tlie unanimous voice of the Americans, teaches us to disown it. Such a depend- ence was never thought of by those who left Britain, in order to settle in America ; nor by their sovereigns, who gave them commissions for that purpose. Such an obli- gation has no correspondent right : for the commons of Great Britain have no dominion over their equals and fellow-subjects in America ; they can confer no right to their delegates to bind those equals and fellow-subjects by laws. There is another, and a much ihore reasonable meaning, which may be intended by the dependence of tlie colonies on Great Britain. The phrase may be used to denote the obedience and loj'alty, whicla the colonists owe to the kings of Great Britain. If it should be alleged, that this cannot be the meaning of the expression, because it is applied to the kingdom, and not to the king, I give the same answer that my Lord Bacon gave to those who said that alle- giance related to the kingdom and not to the king ; because in the statutes there are these words — " born within the allegiance of England " — and again — " born without the LEGISLATIVE ATJTHOEITY OF BRITISH PARLIAMENT. 537 allegiance of England." " There is no trope of speech more familiar," says he, " than to use the place of addition for the person. So we say commonly, the line of York, or the line of Lancaster, for the lines of the duke of York, or the duke of Lancaster. So we say the possessions of Somerset or Warwick, intending the possessions of the dukes of Somerset, or earls of Warwick. And in the very same manner, the statute speaks, allegiance of England, for allegiance of the king of England." ^ Dependence on the mother country seems to have been understood in this sense, both by the first planters of the colonies, and also by the most eminent lawyers, at that time, in England. Those who launched into the unknown deep, in quest of new countries and habitations, still considered them- selves as subjects of the English monarchs, and behaved suitably to that character; but it nowhere appears, that they still considered themselves as represented in an English parliament, or that they thought the authority of the English parliament extended over them. They took possession of the country in the king's name : they treated, or made war with the Indians by Ma authoi'ity : they held the lands under Ms grants, and paid Mm the rents reserved upon them : they established governments under the sanc- tion of Ms prerogative, or by virtue of liis charters : — no application for those purposes was made to the parliament : no ratification of the charters or letters patent was solic- ited from that assembly, as is usual in England with regard to grants and franchises of much less importance. My Lord Bacon's sentiments on this subject ought to have great weight with us. His immense genius, his uni- versal learning, his deep insight into the laws and constitu- tion of England, are well known and much admired. Be- sides, he lived at that time when settling and improving 14 Ld. Bac. 192, 193, Case of the postnati of Scotland. 538 LECTURES ON LAW. the American plantations began seriously to be attended to, and successfully to be carried into execution.^ Plans for the government and regulation of the colonies were then forming : and it is only from the first general idea of these plans, that we can unfold, with precision and ac- curacy, all the more minute and intricate parts, of whicli they now consist. " The settlement of colonies," says he, " must proceed from the option of those who will settle them, else it sounds like an exile : they must be raised by the leave, and not by the command of the king. At their setting out, they must have their commission, or letters patent, from the king, that so they may acknowl- edge their dependency upon the crown of England, and under his protection." In another place he says, "that they still must be subjects of the realm." ^ " In order to regulate all the inconveniences, which will insensibly grow upon them," he proposes, " that the king should erect a subordinate council in England, whose care and charge shall be, to advise, and put in execution, all things which shall be found fit for the good of those new plantations ; who, upon all occasions, shall give an account of their proceedings, to the king or the council board, and from them receive such directions, as may best agree with the government of that place." ^ It is evident, from these quotations, that my Lord Bacon had no conception that the parliament would or ought to interpose,* either in the ' During the reign of Queen Elizabetli, America was chiefly valued on account of its mines. It was not till the reign of James I., that any vig- orous attempts were made to clear and improve the soil. 2 The parliament have no subjects. My Lord Bacon gives, in this ex- pression, an instance of the trope of speech before mentioned. He says, the subjects of the realm, when he means the subjects of the king of the realm. 8 1 Ld. Bac. 725, 726. * It was chiefly during the confusions of the republic, when the king was in exile, and unable to assert his rights, that the house of commons began to interfere in colony matters. LEGISLATIVE AUTHORITY OF BRITISH PARLIAMENT. 539 settlement or the government of the colonies. The only relation, in which he says the colonists must still continue, is that of subjects : the only dependencj', which they ought to acknowledge, is a dependency on the crown. This is a dependence, which they have acknowledged hitherto ; which they acknowledge now ; and which, if it is reasonable to judge of the future by the past and the present, they will continue to acknowledge hereafter. It is not a dependence, like that contended for on parliament, slavish and unaccountable, or accounted for only by prin- ciples that are false and inapplicable : it is a dependence founded upon the principles of reason, of liberty and of law. Let us investigate its sources. The colonists ought to be dependent on the king, be- cause they have hitherto enjoyed, and still continue to enjoy, his protection. Allegiance is the faith and obe- dience, which every subject owes to his prince. This obedience is founded on the protection derived from government : for protection and allegiance are the recip- rocal bonds, which connect the prince and his subjects. ^ Every subject, so soon as he is born, is under the royal protection, and is entitled to all the advantages arising from it. He therefore owes obedience to that royal power, from which the protection, which he enjoys, is de- rived. But while he continues in infancy and nonage, he cannot perform the duties which his allegiance requires. The performance of them must be respited till he arrive at the years of discretion and maturity. When he arrives at those years, he owes obedience, not only for the protection which he now enjoys, but also for that which from his birth, he has enjoyed ; and to which his tender age has ' Between the sovereign and subject there is duplex et reeiprocum ligamen; quia sicut subditus regi tenetur ad obedientiam; ita rex subdito tenetur ad protectionem: merito igitur ligeantia dieitur a ligando, quia continet in se duplex ligamen. 7 Rep. 5a, Calvin's case. 540 LBCTTJKES OK LAW. hitherto prevented him from making a suitable return. Allegiance now becomes a duty founded upon principles of gratitude, as well as on principles of interest: it be- comes a debt, which nothing but the loyalty of a whole life will discharge.^ As neither climate, nor soil, nor time entitle a person to the benefits of a subject ; so an altera- tion of climate, of soil, or of time cannot release him from the duties of one. An Englishman, who removes to foreign countries, however distant from England, owes the same allegiance to his king there which he owed him at home ; and will owe it twenty years hence as much as he owes it now. Wherever he is, he is still liable to the pun- ishment annexed by law to crimes against his allegiance ; and still entitled to the advantages promised by law to the duties of it : it is not cancelled ; and it is not forfeited. " Hence all children born in any part of the world, if they be of English parents continuing at that time as liege sub- jects to the king, and having done no act to forfeit the benefit of tlieir allegiance, are ipso facto naturalized : and if they have issue, and their descendants intermarry among themselves, such descendants are naturalized to all genera- tions." 2 Thus we see, that the subjects of the king, though they reside in foreign countries, still owe the duties of allegiance, and are still entitled to the advantages of it. They trans- mit to their posterity the privilege of naturalization, and all the other privileges which are the consequences of it.^ 1 The king is protector of all his subjects: in virtue of his high trust, he is more particularly to take care of tliose who are not able to take care of themselves, consequently of infants, who, by reason of their nonage, are under incapacities; from hence natural allegiance arises, as a debt of gratitude, whicli can never be cancelled, though the subject owing it goes out of the kingdom, or swears allegiance to another prince. 2 P. Wms. 123, 124. '^4 Ld. Bae. 192. Case of the postnati of Scotland. 3 Natural-born subjects have a great variety of rights, which tliey ac- LEGISLATIVE ATTTHOEITY OF BRITISH PARLIAMENT. 541 Now we have explained the dependence of the Ameri- cans. They are the subjects of the king of Great Brit- ain. They owe him allegiance. They have a right to the benefits which arise from preserving that allegiance inviolate. They are liable to the punishments which await those who break it. This is a dependence, which they have always boasted of. The principles of loyalty are deeply rooted in their hearts ; and there they will grow and bring forth fruit, while a drop of vital blood remains to nourish them. Their history is not stained with rebel- lious and treasonable machinations : an inviolable attach- ment to their sovereign, and the warmest zeal for his glory, shine in every page. From this dependence, abstracted from every other source, arises a strict connection between the inhabitants of Grreat Britain and those of America. They are fellow- subjects ; they are under allegiance to the same prince ; and this union of allegiance naturally produces a union of hearts. It is also productive of a union of measures through the whole British dominions. To the king is in- trusted the direction and management of the great ma- chine of government. He therefore is fittest to adjust the different wheels, and to regulate their motions in such a manner as to co-operate in the same general designs. He makes war : he concludes peace : he forms alliances : he regulates domestic trade by his prerogative, and directs foreign commerce by his treaties with those nations, with whom it is carried on. He names the officers of govern- ment ; so that he can check every jarring movement in the administration. He has a negative on the different legis- quire by being bom in the king's ligeance, and can never forfeit by any distance of place or time, buj only by their own misbehavior ; the ex- planation of which rights is the principal subject of the law. 1 i;i. Com. 371. 542 LECTURES ON LAW. latures throughout his dominions, so that he can prevent any repugnancy in their different laws. The connection and harmony between Great Britain and us, which it is her interest and ours mutually to cul- tivate, and on which her prosperity, as well as ours, so ma- terially depends, will be better preserved by the operation of the legal prerogatives of the crown, than by the exer- tion of an unlimited authority by parliament.^ ^ After considering, with all the attention of which I am capable, the foregoing opinion — that all the different members of the British empire are distinct states, independent of each other, but connected together under the same sovereign in right of the same crown — I discover only one objection that can be offered against it. But tliis objection will, by many, be deemed a fatal one. "How, it will be urged, can the trade of the British empire be carried on, without some power, extending over the whole, to regulate it ? The legislative authority of each part, accord- ing to your doctrine, is confined within the local bounds of that part : how, then, can so many interfering interests and claims, as must necessa- rily meet and contend in the commerce of the whole, be decided and adjusted?" Permit me to answer these questions by proposing some others in my turn. How has the trade of Europe — how has the trade of the whole globe, been carried on ? Have those widely extended plans been formed by one superintending power ? Have they been carried into execution by one superintending power ? Have they been formed — have they been carried into execution, with less conformity to the" rules of justice and equality, than if they had been under the direction of one superintend- ing power ? It has been the opinion of some politicians, of no inferior note, that all regulations of trade are useless ; that the greatest part of them are hurt- ful ; and that the stream of commerce never iiows with so much beauty and advantage, as when it is not diverted from its natural channels. Whether this opinion is well founded or not, let others determine. Thus much may certainly be said, that commerce is not so properly the object of laws, as of treaties and compacts. In this manner, it has been al- ways directed among the sever? 1 nations of Europe. But if the commerce of the British empire must be regulated by a gen- eral superintending power, capable of exerting its influence over every part of it, why may not this power be Intrusted to the king, as a part of the royal prerogative ? By making treaties, which it is his prerogative to make, he directs the trade of Great Britain with the other states of LEGISLATIVE AUTHOEITV OF BRITISH PARLIAMENT. 543 Europe : and his treaties wltli those states have, when considered with regard to his subjects, all the binding force of laws upon them. (1. Bl. Com. 252.) Where is tlie absurdity in supposing him vested with the same right to regulatethe commerce of the distinct parts of his dominions with one another, wliicli lie has to regulate their commerce witli foreign states ? If the history of tlie Britisli constitution, relating to this sub- ject, be carefully traced, I appreliend we sliall discover, that a preroga- tive in tlie crown, to regulate trade, is perfectly consistent with the prin- ciples of law. We find many authorities that the king cannot lay impo- sitions on traffic ; and that lie cannot restrain it altogether, nor confine it to monopolists ; but none of the authorities, that I have had an op- portunity of consulting, go any farther. Indeed many of them seem (o imply a power in the crown to regulate trade, where tliat power is CKerted for the great end of all prerogative — the public good. If tlie power of regulating trade be, as I am apt to believe it to be, vested, by tlie principles of the constitution, in tlie crown, this good ef- fect will flow from tlie doctrine : a perpetual distinction will be kept up between that power, and a power of laying impositions on trade. The prerogative will extend to the former : it can, under no pretence, extend to the latter : as it is given, so it is limited, by the law. SPEECH DELIVERED IN THE CONVENTION FOR THE PROVINCE OP PENNSYLVANIA, HELD AT PHILADELPHIA, IN JANUAEY, 1775. SPEECH IN CONVENTION, IN JANUARY, 1775." Whence, sir, proceeds all the invidious and ill- grounded clamor against the colonists of America ? Why- are they stigmatized, in Britain, as licentious and un- governable? Wh}- is their virtuous opposition to the illegal attempts of their governors, represented under the falsest colors, and placed in the most ungracious point of view? This opposition, when exhibited in its true light, [' The progress of the contest between the English parliament and the •colonies should be noted, in order to understand the real force of this speech. The fundamental propositions of the Declaration of Independ- ence are here declared, as in the last speech the fundamental principles of government and liberty were expressed in language quite similar to that used in the Declaration of Independence. The climax of the Dec- laration is readied at the point when the king is charged with combin- ing with others (parliament) to subject us to a jurisdiction foreign to our 'Constitution, etc., and ends with the declaration that he has abdicated government here, etc. In this speech all of these acts are referred to. The unwarranted acts of parliament are subjected to a proposed reso- lution and the fact of abdication alluded to at p. 556. The whole speech compares favorably with any of the masterpieces of English or Ameri- can oratory in elegance of diction, in warmth of expression, power of reasoning, or breadth of information. And a comparison of the speech with the Declaration of Independence will dispel the illusion cherished in some quarters that the source of our Declaration can be traced to foreign shores. The brighest side of Wilson's nature is said to have been his power of advocacy, and this speech ought to be an everlasting monument of his ■eloquence and power.] 35 ''' 548 LECTURES ON LAW. and when viewed, with unjaundiced eyes, from a proper situation, and at a proper distance, stands confessed the lovely offspring of freedom. It breathes the spirit of its parent. Of this ethereal spirit, the whole conduct, and particularly the late conduct, of the colonists has shown them eminently possessed. It has animated and reg- ulated every part of their proceedings. It has been recognized to be genuine, by all those symptoms and effects, by which it has been distinguished in other age» and other countries. It has been calm and regular : it has not acted without occasion : it has not acted dispro- portionably to the occasion. As the attempts, open or secret, to undermine or to destroy it, have been repeated or enforced ; in a just degree, its vigilance and its vigor have been exerted to defeat or to disappoint them. As its exertions have been sufficient for those purposes hitherto, let us hence draw a joyful prognostic, that they will continue sufficient for those purposes hereafter. It is not yet exhausted ; it will still operate irresistibly whenever a necessary occasion shall call forth its strength. Permit me, sir, by appealing, in a few instances, to the spirit and conduct of the colonists, to evince, that what I have said of them is just. Did they .disclose any uneasiness at the proceedings and claims of the British parliament, before those claims and proceedings afforded a reasonable cause for it ? Did they even disclose any un- easiness, when a reasonable cause for it was first given ? Our rights were invaded by their regulations of our in- ternal policy. We submitted to them : we were unwill- ing to oppose them. The spirit of liberty was slow to act. When those invasions were renewed ; when the efficacy and malignancy of them were attempted to be redoubled by the stamp act ; when chains were formed for us; and preparations were made for rivetting them SPEECH AT CONVENTION IN PENNSYLVANIA. 549 on our limbs — what measures did we pursue ? The spirit of liberty found it necessary now to act : but she acted with the calmness and decent dignity suited to her character. Were we rash or seditious? Did we discover want of loyalty to our sovereign ? Did we betray want of affection to our brethren in Britain ? Let our dutiful and reverential petitions to the throne — let our respectful, though firm, remonstrances to the parliament — let our warm and affectionate addresses to our brethren, and (we will still call them) our friends in Great Britain — let all those, transmitted from every part of the continent, testify the truth. By their testimony let our conduct be tried. As our proceedings during the existence and operation of the stamp act prove fully and incontestably the painful sensations that tortured our breasts from the prospect of disunion with Britain; the peals of joy, which burst forth universally, upon the repeal of that odious statute, loudly proclaim the heartfelt delight produced in us by a reconciliation with her. Unsuspicious, because unde- signing, we buried our complaints, and the causes of them, in oblivion, and returned, with eagerness, to our former unreserved confidence. Our connection with our parent country, and the reciprocal blessings resulting- from it to her and to us, were the favorite and pleasing topics of our public discourses and our private conversa- tions. Lulled into delightful security, we dreamt of nothing but increasing fondness and friendship, cemented and strengthened by a kind and perpetual communication of good offices. Soon, however, too soon, were we awak- ened from the soothing dreams ! Our enemies renewed their designs against us, not with less malice, but with more art. Under the plausible pretence of regulating our trade, and, at the same time, of making provision for the administration of justice, and the support of government, in some of the colonies, they pursued their scheme of 550 LECTURES ON LAW. depriving us of our property without our consent. As the attempts to distress us, and to degrade us to a rank inferior to that of freemen, appeared now to be reduced into a regular system, it became proper, on our part, to form a regular system for counteracting them. We ceased to import goods from Great Britain. Was this measure dictated by selfishness or by licentiousness ? Did it not injure ourselves, while it injured the British merchants and manufacturers ? Was it inconsistent with the peace- ful demeanor of subjects to abstain from making pur- chases, when our freedom and our safety rendered it necessary for us to abstain from them ? A regard for our freedom and our safety was our only motive; for no sooner had the parliament, by repealing part of the rev- enue laws, inspired us with the flattering hopes that they had departed from their intentions of oppressing and of taxing us, than we forsook our plan for defeating those intentions, and began to import as formerl}-. Far from being peevish or captious, we took no public notice even of their declaratory law of dominion over us : our candor led us to consider it as a decent expedient of retreating from the actual exercise of that dominion. But, alas ! the root of bitterness still remained. Tlie duty on tea was reserved to furnish occasion to the minis- try for a new effort to enslave and to ruin us ; and the East India Company were chosen, and consented, to be the detested instruments of ministerial despotism and cruelty. A cargo of their tea arrived at Boston. Bj- a low artifice of the governor, and by the wicked activity of the tools of government, it was rendered impossible to stoie it up, or to send it back ; as was done at other places. A number of persons unknown destroyed it. Let us here make a concession to our enemies : let us suppose that the transaction deserves all the dark and hideous colors, in which they have painted it : let us even SPEECH AT CONVENTION IN PENNSYLVANIA. 551 suppose — for our cause admits of an excess of candor — that all their exaggerated accounts of it were confined strictly to the truth : what will follow ? Will it follow, that every British colony in America, or even the colony of Massachusetts Bay, or even the town of Boston in that colony, merits the imputation of being factious and sedi- tious ? Let tlie frequent mobs and riots that have hap- pened in Great Britain upon much more trivial occasions shame our calumniators into silence. Will it follow, be- cause the rules of order and regular government were, in that instance, violated by the offenders, that, for tJiis rea- son, the principles of the constitution, and the maxims of justice, must be violated by their punishment ? Will it follow, because those who were guilty could not be known, that, therefore, those who were known not to be guilty must suffer ? Will it follow, that even the guilty should be condemned without being heard ? — That they should be condemned upon partial testimony, upon the represent- ations of their avowed and embittered enemies ? Why were they not tried in courts of justice known to their constitution, and by juries of their neighorbood ? Their courts and their juries were not, in the case of Captain Preston, transported beyond the bounds of justice by their resentment : why, then, should it be presumed, that, in the case of those offenders, they would be prevented fromi doing justice by their affection ? But the colonists, it seems, must be stript of their judicial, as well as of their legislative powers. They must be bound by a legislature,, they must be tried by a jurisdiction, not their own. Their constitutions must be changed : their liberties must be abridged : and those, who shall be most infamously active in changing their constitutions and abridging their liber- ties, must, by an express provision, be exempted from punishment. I do not exaggerate the matter, sir, when I extend these 552 LECTTJEES ON LAW. observations to all the colonists. The parliament meant to extend the effects of their proceedings to all the colo- nists. The plan, on which their proceedings are formed, extends to them all. From an incident, of no very uncom- mon or atrocious nature, which happened in one colony, in one town in that colony, and in which only a few of the inhabitants of that town took a part, an occasion has been taken by those, who probably intended it, and who cer- tainly prepared the way for it, to impose upon that colony, and to lay a foundation and a precedent for imposing upon all the rest, a system of statutes, arbitrary, unconstitutional, oppressive, in every view and in every degree subversive of the rights, and inconsistent with even the name of free- men. Were the colonists so blind as not to discern the conse- quences of these measures ? Were they so supinely inac- tive as to take no steps for guarding against them ? They were not. They ought not to have been so. We saw a breach made in those barriers, which our ancestors, British and American, with so much care, with so much danger, with so much treasure, and with so much blood, had erected, cemented, and established for the security of their liberties and— with filial piety let us mention it — of oui-s : we saw the attack actuallj^ begun upon one part : ought we to have folded our hands in indolence, to have lulled our eyes in slumbers, till the attack was carried on, so as to become irresistible, in every part ? Sir, I presume to think not. We were roused ; we were alarmed, as we had reason to be. But still our measures have been such as the spirit of libertjr and of loyalty directed ; not such as a spirit of sedition or of disaffection would pursue. Our counsels have been conducted without rashness and fac- tion : our resolutions have been taken without frenzy or fury. That the sentiments of every individual concerning that SPKECH AT CONVENTION IN PENNSYLVANIA. 553 important object, his liberty, might be known and regarded, meetings have been held, and deliberations carried on in every particular district. That the sentiments of all those individuals might gradually and regularly be collected into a single point, and the conduct of each inspued and di- rected by the result of the whole united, county com- mittees — provincial conventions — a continental congress have been appointed, have met and resolved. By this means, a chain— more inestimable, and, while the necessity for it continues, we hope, more indissoluble than one of gold — a chain of freedom has been formed, of which every individual in these colonies, who is willing to preserve the greatest of human blessings, his liberty, has the pleasure of beholding himself a link. Are these measures, sir, the brats of disloyalty, of dis- affection ? There are miscreants among us — wasps that suck poison from the most salubrious flowers — who tell us they are. They tell us that all those assemblies are unlaw- ful, and unauthorized by our constitutions ; and that all their deliberations and resolutions are so many transgres- sions of the duty of subjects. The utmost malice brood- ing over the utmost baseness, and nothing but such a hated commixture, must have hatched this calumny. Do not those men know — would they have others not to know — that it was impossible for the inhabitants of the same prov-, ince, and for the legislatures of the different provinces, to communicate their sentiments to one another in the modes appointed for such purposes, by their different con- ,stitutions ? Do not they know — ^would they have others not to know — that all this was rendered impossible hy those very persons, who now, or whose minions now, urge this objection against us ? Do not they know — would they have others not to know — that the different assem- blies, who could be dissolved by the governors, were, in consequence of ministerial mandates, dissolved by them, 654 LECTtTKES ON LAW. whenever they attempted to turn their attention to the- greatest objects, which, as guardians of the liberty of their constituents, could be presented to their view ? The arch, enemy of the human race torments them only for those actions, to which he has tempted, but to which he has not necessarily obliged them. Those men refine even upon infernal malice : they accuse, they threaten us (superlative- impudence !) for taking those very steps, which we were- laid under the disagreeable necessity of taking bj' them- selves, or by those in whose hateful service they are en- listed. But let them know, that our counsels, our delibera- tions, our resolutions, if not authorized by the forms, because that was rendered impossible by our enemies, are neverthe- less authorized by that which weighs much more in the scale of reason — ^by the spirit of our constitutions. Was the convention of the barons at Runnymeade, where the tyranny of John was checked, and magna charta was signed, authorized by the forms of the constitution ? Was the convention parliament, that recalled Charles the Second, and restored the monarchy, authorized by the forms of the- constitution ? Was the convention of lords and commons, that placed King William on the throne, and secured the monarchy and liberty likewise, authorized by the forms of the constitution ? I cannot conceal mj' emotions of pleas- ure, when I observe, that the objections of our adversaries cannot be urged against us, but in common with those venerable assemblies, whose proceedings formed such am accession to British liberty and British renown. The resolutions entered into, and the recommenda- tions given, by the continental congress, have stamped, in the plainest 'characters, the genuine and enlightened spirit of liberty upon the conduct observed, and the meas- ures pursued, in consequence of them. As the invasions of our rights have become more and more formidable^ our opposition to them has increased in firmness and. SPEECH AT CONVENTION IN PENNSYLVANIA. 55r> yigor, in a just, and in no more than a just, piopoitioiu We will not import goods from Great Britain or Ireland : in a little time we will suspend our exportations to them : and, if the same illiberal and destructive system of policy be still carried on against us, in a little time more we will not consume their manufactures. In that colony where the attacks have been most open, immediate, and direct, some farther steps have been taken, and those steps have met with the deserved approbation of the other prov- inces. Is this scheme of conduct allied to rebellion ? Can any symptoms of disloyalty to his majesty, of disinclina- tion to his illustrious family, or of disregard to his anthoi- ity be traced in it ? Tliose, who would blend, and whose crimes have made it necessary for them to blend, the tyran- nic acts of administration with the lawful measures of government, and to veil every flagitious procedure of the ministry under the venerable mantle of majesty, pretend to discover, and employ their emissaries to publish the pretended discovery of such symptoms. We are not, ho\^- ever, to be imposed upon hj such shallow artifices. We know, that we have not violated the laws or the constitu- tion ; and that, therefore, we are safe as long as the laws retain their force and the constitution its vigor ; and that, whatever our demeanor be, we cannot be safe much longer. But another object demands our attention. We behold — sir, with the deepest anguish we behold — that our opposition has not been as effectual as it has been constitutional. The hearts of our oppressors have not relented : our complaints have not been heard : our grievances have not been redressed : our rights are still invaded : and have we no cause to dread, that the invasions of them will be enforced in a manner, against which alL reason and argument, and all opposition of every peaceful kind, will be vain ? Our opposition has hitherto increased 556 LECTURES ON LAW. ■with our oppression : shall it, in the most desperate of all contingencies, observe the same proportion ? Let us pause, sir, before we give an answer to this ques- tion : the fate of us ; the fate of millions now alive ; the fate of millions yet unborn depends upon the answer. Let it be the result of calmness and of intrepidity: let it be dictated by the principles of loyalty, and the principles of liberty. Let it be such, as never, in the worst events, to give us reason to reproach ourselves, or others reason to reproach us for having done too much or too little. Perhaps the following resolution may be found not altogether unbefitting our present situation. With the greatest deference I submit it to the mature consideration of this assembly. " That the act of the British parliament for altering the charter and constitution of the colony of Massachusetts Bay, and those 'for the impartial administration of jus- tice ' in that colony, for shutting the port of Boston, and for quartering soldiers on the inhabitants of the colonies, are unconstitutional and void ; and can confer no author- ity upon those who act under color of them. That the crown cannot, by its prerogative, alter the charter or con- stitution of that colony : that all attempts to alter the said charter or constitution, unless by the authority of the legis- lature of that colony, are manifest violations of the rights of that colon}', and illegal : that all force employed to carry such unjust and illegal attempts into execution is force without authority : that it is the right of British subjects to resist such force : that this right is founded both upon the letter and the spirit of the British constitu- tion." To prove, at this time, that those acts are unconstitu- tional and void is, I apprehend, altogether unnecessary. The doctrine has been proved fuUj^ on other occasions, and has received the concurring assent of British Amer- SPEECH AT CONVENTION IN PENNSYLVANIA. OOI ica. It rests upon plain and indubitable tiutlis. We do not send members to the British parliament : we have par- liaments (it is immaterial what name they go by) of our own. That a void act can confer no authority upon those, who proceed under color of it, is a self-evident proposi- tion. Before I proceed to the other clauses, I think it useful to recur to some of the fundamental maxims of the Britisli constitution ; upon which, as upon a rock, our wise ances- tors erected that stable fabric, against which the gates of hell have not hitherto prevailed. Those maxims I shall apply fairly, and, I flatter myself, satisfactorily to evince everj' particular contained in the resolution. The government of Britain, sir, was never an arbitrary government : our ancestors were never inconsiderate «nough to trust those lights, which God and nature had ■given them, unreservedly into the hands of their princes. However difScult it may be, in other states, to prove an ■original contract subsisting in any other manner, and on any other conditions, than are naturally and necessarily implied in the very idea of the first institution of a state ; it is tlie easiest thing imaginable, since the revolution of 1688, to prove it in our constitution, and to ascertain some of the material articles, of which it consists. It has been often appealed to : it has been often broken, at least on one part : it has been often renewed : it has been often confirmed: it still subsists in its full force : "it binds the king as much as the meanest subject. " ^ The measures of his power, and the limits, beyond which he cannot ex- tend it, are circumscribed and regulated by the same au- thority, and with the same precision, as the measures of the subject's obedience, and the limits, beyond which he is under no obligation to practise it, are fixed and ascer- 1 Bol. Pat. King. 12-2. 558 LECTURES ON LAW. tained. Liberty is, by the constitution, of equal stabilitj^ of equal antiquity, and of equal authoiitj^ with preroga- tive. The duties of the king and those of the subject are plainly reciprocal : tliey can be violated on neither side, unless they be performed on the otlier.^ The law is the common standard, by which the excesses of prerogative as well as the excesses of libert}- are to be regulated and re- formed. Of this great compact between the king and his people, one essential article to be performed on his part is — that, in those cases where provision is expressly made and lim- itations set by the laws, his government shall be con- ducted according to those provisions, and restrained accord- ing to those limitations — that, in those cases, which are not- expressly provided for by the laws, it shall be conducted by the best rules of discretion, agreeably to tlie general spirit of the laws, and subserviently to their ultimate end- — the interest and happiness of his subjects — that, in no case, it shall be conducted contrary to the exjjress, or to the implied principles of the constitution. These general maxims, which we may justlj' consider as fundamentals of our government, Avill, hy a plain and obvious application of them to the 2)arts of the resolution remaining to be proved, demonstrate tliem to be strictly agreeable to the laws and constitution. We can be at no loss, in resolving, that tlie king can- not, by his prerogative, alter the charter or constitution of the colony of Massachusetts Bay. Upon what i)rinciple could such an exertion of prerogative be justified ? On the acts of parliament ? They are already proved to be void. On the discretionary power Avhich the king has of acting where the laws are silent? That power must be ^ Bo!. Tracts, 293. The compact between the king and people is mut- ual, and the parties are mutually bound. 11 Pari. Deb. 455. (Ld. Chesterfield.) SPEECH AT CONVENTION IN PENNSYLVANIA. 559 «ubservient to the interest and happiness of those, conceri)- ing whom it operates. But I go farther. Instead of be- ing supported by law, or the principles of prerogative, .such an alteration is totally and absolutely repugnant to both. It is contrary to express law. The charter and constitution we speak of are confirmed by the only legis- lative power capable of confirming them : and no other power, but that which can ratify, can destroy. If it is con- trary to express law, the consequence is necessary, that it is contrary to the principles of prerogative : for preroga- tive can operate only when the law is silent. In no view can tliis alteration be justified, or so much as excused. It cannot be justified or excused by the acts of parliament ; because the authority of parliament does not extend to it : it cannot be justified or excused by the oper- ation of prerogative ; because this is none of the cases, in which prerogative can operate : it cannot be justified or ■excused by the legislative authority of the colony ; because that authority never has been, and, I presume, never will 'be given for any such purpose. If I have proceeded hitherto, as I am persuaded I have, upon safe and sure ground, I can, with great confidence, advance a step farther, and say, that all attempts to alter the charter or constitution of that colony, unless by the authority of its own legislature, are violations of its rights, and illegal. If those attempts are illegal, must not all force, employed to carry them into execution, be force employed against law, and without authority ? The conclusion is unavoid- able. Have not British subjects, then, a right to resisb such force — force acting without authority — force employed contrary to law — force employed to destroy the very exist- ence of law and of liberty ? They have, sir, and this right is secured to them both by the letter and the spirit of the 560 LECTURES ON LAW. British constitution, by which the measures and the con- ditions of their obedience are appointed. The British lib- erties, sir, and the means and the right of defending them, are not the grants of princes ; and of what our princes never granted they surely can never deprive us. I beg leave, here, to mention and to obviate some plaus- ible but ill-founded objections, that have been, and will be, held forth by our adversaries, against the principles of the resolution now before us. It will be observed, that those employed for bringing about the proposed alteration in the charter and constitution of the colony of Massachusetts Bay act by virtue of a commission for that purpose from hi^ majesty : that all resistance of forces commissioned by his majesty, is resistance of his majesty's authority and gov- ernment, contrary to the duty of allegiance, and treason- able. These objections will be displayed in their most specious colors : every artifice of chicanery and sophistry will be put in practice to establish them : law authorities, perhaps, will be quoted and tortured to prove them. Those principles of our constitution, which were designed to pre- serve and to secure the liberty of the people, and, for the sake of that, the tranquillity of government, will be per- verted on this, as they have been on many other occa- sions, from their true intention ; and will be made use of for the contrary purpose of endangering the latter, and destroying the former. The names of the most exalted virtues, on one hand, and of the most atrocious crimes, on the other, will be employed in direct contradiction to the nature of those virtues, and of those crimes : and, in this manner, those who cannot look beyond names, will be de- ceived ; and those, whose aim it is to deceive by names, will have an opportunity of accomplishing it. But, sir, this dis- guise will not impose upon us. We will look to things as well as to names: and, by doing so, we shall be fully satisfied, that all those objections rest upon mere verbal SPEECH AT CONVENTION IN PENNSYLVANIA. 5lil sophistry, and have not even the remotest alliance with the principles of reason or of law. In the first place, then, I say, that the persons who al- lege, that those, employed to alter the 'charter and consti- tution of Massachusetts Bay, act by virtue of a commission from his majesty for that purpose, speak improperly, and contrary to the truth of the case. I say, they act by virtue of no such commission : I say, it is impossible they can act by virtue of such a commission.. What is called a com- mission either contains particular directions for the pur- pose mentioned ; or it contains no such particular direc- tions. In neither case can those, who act for that purpose, act by virtue of a commission. In one case, what is called a commission is void ; it has no legal existence ; it can communicate no authority. In the other case, it extends not to the purpose mentioned. The latter point is too plain to be insisted on — I prove the former. " Id rex potest," says the law, " quod de jure potest." ^ The King's power is a power according to law. His com- mands, if the authority of Lord Chief Justice Hale ^ may be depended upon, are under the directive power of the law ; and consequently invalid, if unlawful. Commissions, says my Lord Coke,^ are legal ; and are like the king's writs ; and none are lawful, but such as are allowed by the common law, or warranted by some act of parliament. Let us examine any commission expressly directing- those to whom it is given, to use military force for carry- ing into execution the alterations proposed to be made in the charter and constitution of Massachusetts Bay, by the foregoing maxims and authorities ; and what we have said concerning it will appear obvious and conclusive. It is 1 9 Rep. 123. 21 Hale P. C. 43, 44. Vide on this head, 4 Bac. 149. 9 Pari. Hist. 168, 170, 179, 180. Vent. 63, 169. 3 Ins. 287, 238, 240. 'Sins. 165. 562 LECTURES OS LAW. not warranted by any act of parliament ; because, as has been mentioned on this, and has been proved on other occasions, any such act is void. It is not warranted, and I believe it will not be pretended that it is warranted, by the common law. It is not warranted by the royal prerog- ative ; because, as has already been fully shown, it is dia- metrically opposite to the principles and the ends of prerog- ative. Upon what foundation, then, can it lean and be supported? Upon none. Like an enchanted castle, it may terrify those, whose eyes are .affected by the magic influence of the sorcerers, despotism and slavery : but so soon as the charm is dissolved, and the genuine rays of liberty and of the constitution dart in upon us, the formid- able appearance vanishes, and we discover that it was the baseless fabric of a vision, that never had any real ex- istence. I have dwelt the longer upon this part of the objections urged against us by our adversaries ; because this part is the foundation of all the others. We have now removed it ; and they must fall of course. For if the force, acting for the purposes we have mentioned, does not act, and cannot act, by virtue of any commission from his majesty, the consequence is undeniable, that it acts without his majesty's authority ; that the resistance of it is no resist- ance of his majesty's authority; nor incompatible with the duties of allegiance. And now, sir, let me appeal to the impartial tribunal of reason and truth — let me appeal to every unprejudiced and judicious observer of the laws of Britain, and of the constitution of the British government — let me appeal, I say, whether the principles on which I argue, or the prin- ciples on which alone my arguments can be opposed, are those which ought to be adhered to and acted upon — which of them are most consonant to our laws and liber- ties — which of them have the strongest, and are likely t» SPEECH AT CONVEKTION IN PENNSYLVANIA. 563 have the most eifectual, tendency to establish and secure the royal power and. dignity. Are we deficient in loyalty to his majesty ? Let our conduct convict, for it will fully convict, the insinuation, that we are, of falsehood. Our loyalty has always ap- peared in the true form of loyalty — in obeying our sover- eign according to law ; ^ let those, who would require it in any other form, know, that we call the persons who exe- cute his commands, when contrary to law, disloyal and traitors. Are we enemies to the power of the crown? No, sir ; we are its best friends : this friendship prompts us to wish, that the power of the crown may be firmly es- tablished on the most solid basis ; but we know, that the constitution alone will perpetuate the former, and securely uphold the latter. Are our principles irreverent to maj- esty ? They are quite the reverse : we ascribe to it per- fection, almost divine. We say, that the king can do no wrong : we say, that to do wrong is the property, not of power, but of weakness. We feel oppression; and will oppose it ; but we know — for our constitution tells us — that oppression can never spring from the throne. We must, therefore, search elsewhere for its source : our infal- lible guide will direct us to it. Our constitution tells us, that all oppression springs from the ministers of the throne. The attributes of perfection, ascribed to the king, are, neither by the constitution, nor in fact, communicable to his ministers. They may do wrong : they have often dpne wrong : they have been often punished for doing wrong. Here we may discern the true cause of all the impudent clamor and unsupported accusations of the ministers and 1 Rebellion being an opposition, not to persons, but authority, whieh is founded only in the constitution and laws of the government, those, who- ever they be, who by force break through, and by force justify the viola- tion of them, are truly and properly rebels. Puffend. 720, 721, iiMes. 36 664 LECTURES ON LAW. . of their minions, that have been raised and made against the conduct of the Americans. Those ministers and min- ions are sensible, that the opposition is directed, not against his majesty, but against them : because they have abused his majesty's confidence, .brought discredit upon his government, and derogated from his justice. They see the public vengeance collected in dark clouds around them : their consciences tell them, that it should be hurled, like a thunderbolt, at their guilty heads. Ap- palled with guilt and fear, they skulk behind the throne. Is it disrespectful to drag them into public view, and make a distinction between them and his majesty, under whose venerable name they daringly attempt to shelter their crimes? Nothing can more effectually contribute to es- tablish his majesty on the throne, and to secure to him the affections of his people, than this distinction. By it we are taught to consider all the blessings of government as flowing from the throne ; and to consider every instance of oppression as proceeding, which in truth is oftenest the case, from the ministers. If, now, it is true, that all force employed for the pur- poses so often mentioned, is force unwarranted by any act of parliament ; unsupported by any principle of the com- mon law; unauthorized by any commission from the crown — that, instead of being employed for the support of the constitution and his majesty's government, it must be employed for the support of oppression and ministerial tyranny — if all this is true — and I flatter myself it appears to be true — can any one hesitate to say, that to resist such force is lawful : and that both the letter and the spirit of the British constitution justify such resistance ? Resistance, both by the letter and the spirit of the British constitution, may be carried farther, when neces- sity requires it, than I have carried it. Many examples in the English history might be adduced, aud many SPEECH AT CONVEKTION IN PENNSYLVANIA. 565 authorities of the greatest weight might be brought, to show, that when the king, forgetting his character and his dignity, has stepped forth, and openly avowed and taken a part in such iniquitous conduct as has been described ; in such cases, indeed, the distinction above mentioned, wisely made by the constitution for the security of the crown, could not be applied ; because the crown had un- constitutionallj' rendered the application of it impossible. What has been the consequence ? The distinction be- tween him and his ministers has been lost : but they have not been raised to his situation : he has sunk to theirs. NOTE A.i WHO ARE THE PEOPLE? " Men imagine that their reason governs words, whilst in tact words re-act on the understanding, and this has rendered philosophy and the sciences sophistical and inactive. Hence the great and solemn disputes of learned men often terminate about words and names in regard to which it would be better to proceed more advisedly in the first instances, and to bring such disputes to a regular issue by definition." — Bacon, Novum Organum. In an address read before the Congress on Jurisprudence and Law Reform of the World's Congress Auxiliary, written by David Dudley Field (published in 35 Chicago Legal Nevs^s, 438), he asserts that at the time of the Declaration of Independence, " The People " meant the adult white males. He states that our forefathers began by asserting the sovereignty of the people. It is, he says, under the influence of these great principles that our political society, State and National, has been built. That such an assertion could pass unchallenged, is sufficient evi- dence that it was not generally understood to be incorrect. It may be that the assertion is based upon a proposition enunciated by Judge Cooley in the 6th edition, his work upon Constitutional Limitations, p. 40 (it did not appear in the earlier edition), that " as a practical fact, the sovereignty is vested in those persons who are permitted by the Constitution of the State to exercise the elective franchise." While this expression does not go to the same extent as that of Mr, Field, it is open to criticism. " Permitted to exercise " materi- ally modifies the expressiofi of " vested," but the statement is verbally- inaccurate. The case cited by Judge Cooley does not warrant so strong a statement as that suffrage is vested. Vested is the language of right ; entrusted is the language of delegation. In that case the court holds that the voters are only entrusted with a delegated power. In matters of this kind words are things. It is im- 1 This note was originally published in the Chicago Legal Kews, Nov. 4, 1893, and is but slightly changed. 566 APPENDIX. 567 portant that the germs of error be not allowed to lurk at roots of the Constitution. If one overlooks the fundamental principle of the Constitution he may learn many rules of constitutional law, but he will never understand the theory and science of republican institu- tions. The mere statement of Mr. Field's proposition leads one to inquire whether such a government is republican and free, or des- potic. It has been asserted that the test as to whether a government was free or despotic, is not how the laws are administered, but what powers might legally be exercised by those in whose hands the reins of government are placed. This is not to be determined by the num- ber who exercise power, for if a large class of citizens are, accord- ing to the form and theory of the Constitution of a nation, legally vested with complete power over another large class of citizens, what element of despotism is lacking ? If such is true of our government, wherein, so far as universal equality before the law, has it any ad- vantage over that of the mother country ? At the time of the Declaration of Independence, every man, woman and cliild owed allegiance to the king of England, i. e., they were his subjects, and had a right to expect from him in return protection against violence and wrong ; but in a constitutional sense, according to Blackstone, there were no people. The Parliament was the body politic. When allegiance was renounced, what was obtained instead ? The privilege merely of being governed by an unknown number pos- sessing uncontrolled power, and from whose action there is no appeal? " That woi-st of tyrants an usurping crowd ? " Intelligence has not yet been required as a qualification of membership in the sacred oi-der of electors. Is any such theory borne out by the situation, assertions, opinions or acts of our ancestors who obtained our independence and estab- lished our constitution? Most assuredly, such was not either the theory or political fact, and fortunately, there is no lack of contem- poraneous evidence upon the subject. Our political and judicial history furnishes abundant and conclusive authority upon the question. The ancient land-marks of our forefaithei's, though somewhat obscured by the (falling and one might say, decaying) leaves of com- mentators, still exist and are easily discoverable. In the Constitution of New York, adopted in 1777, is this clause : " This convention therefore, in the name of and by the authority of the good people of this State, doth ordain, determine and declare, that no authority shall, on any pretence whatever, be exercised over the people or members of this State but such as shall be derived from and granted by them. The words are "over the people" (collect- ively) or "members" (individually). Mr. Field should have shown that the free blacks and females were not members of the State. 568 APPENDIX. In the preamble to the constitution of Massachusetts is found this declaration : " The body politic is formed by voluntary association of individuals. It is a social compact by which the whole people covenants with each citizen, and each citizen with the people ; that all shall be governed by certain laws for the common good," and the preamble concludes : " We, therefore, acknowledging with grateful hearts the goodness of the Great Legislator in affording us an oppor- tunity, deliberately and peaceably, without violence or surprise of entering into an original, explicit and solemn compact with each other, and of forming a new constitution of civil government," etc.; this is declared to be done " to the end that it may be a government of laws and not of men." The framers of the Declaration of Independence declared that the "legislative power, incapable of annihilation, had returned to the people at large for their exercise." What people did they mean ? Surely the white adult males were not all voters, for suffrage was, in some colonies, an incident to the feudal doctrine of tenures in land, and surely, after July 4, 1776, females voted in some colonies, and free blacks voted, and in some states, after the adoption of the Federal Constitution, exercised the suffrage : Dred Scott v. Sanford, 19 Howard ; Blair v. Ridgley, 41 Mo. 93. The colonists renounced allegiance, not to the English voters, not to the English Parliament, not to the English people, but to King George III. , whose subjects they were. They asseirted that he had abdicated the government here by declaring us out of his protection, and waging war against us. According to the facts existing after the Declaration, and accord- ing to the theory of law, as it then obtained, every citizen of the colonies became not only free, but equal in rights, to any other citizen. To be sure they were in that dreadful state contemplated by Blaokstone, when he says that under such circimistances they were " without any judge upon earth to define their several rights and redress their several wrongs, and as all members which com- posed their society were naturally equal. It may be asked " in whose hands are the reins of government to be entrusted ? " It is quite evident, however, that the framers of the Declaration drew the line sharply between government and laws, and between the political society and government. Their government was in the same state as that of their ancestors in 1688, when James II. abdicated the government in England. They invoked the well-known doctrine, that during a change in government, the people are not without laws : American Ins. Co. v. Bales of Cotton, 1 Peters, 540. The}' maintained that they had existing among them the common law of England, founded upon the ancient anti-feudal principles, consent APPENDIX. 669 and representation. It will be found upon a close examination that throughout all the acts and declarations in all conventions or public assemblages, those acting, professed to observe the principle which lies at the foundation of our republican form of government, namely : That no authority was to be exercised as of personal right, but that all authority was derived from the people either by express grant, or by reason of acts performed in the name or by the authority of the people, and afterward by them ratified : Ware v. Hylton, 3 DaU. 233. There being no nobles or unequal classes, "the question then recently put by Blackstone was forced upon them, must some superior be constituted? Is self-government possible? Or must there be a sovereign? Can limitations be set upon all power ? Or is the notion of a superior to command, essential to the idea of municipal law ? According to the English doctrine, as stated by Blackstone, it was essential to the idea of law, that there must be a superior, that is, they were face to face to his, Blackstone's, definition of law. That " law is a rule of action prescribed by the supreme power in a State." This position, says Judge Wilson, is only a branch of a more extended principle upon which a plan of systematic despotism has lately been formed in England. The principle is, that all human laws must be prescribed by a superioi*. Tliis principle I mean not now to examine ; suffice to say, that another principle, very different in its nature and operations, forms the basis of sound jurisprudence. Laws derived from the pure source of equality and justice must be founded on the consent of those whose obedience they require: Chisholm t'. Ga., 2 Ball. 458. The idea of sovereignty, which obtained at the time of the Revolu- tion, regarded as the essential attributes of sovereignty, inequality and unlimited power. Inequality and personal superiority were re- pudiated by the Declaration of Independence. What was substituted in its stead ? Certainly, so far as tliis question is concerned, they acted upon an entirely new and different principle. I may add upon one never before practised in any country, viz. . The one just men- tioned, that power is never to be exercised as of personal right. The doctrine of representation was not of recent origin ; the doctrine of consent was at the basis of English law, although Blackstone seems to have omitted to notice the decisions of the judges of England upon those questions: Middleton v. Cross, 3 Atkyns, 65; Matthews v. Burdett, 2 Salk. 673. The idea of sovereignty has haunted us like a ghost. Sovereignty was either God-given, or created by the constitution. We have formed a contempt for the doctrine of the divine right of kings, but has submission to an assumed superiority worked the same end ? The fundamental and peculiar principle in American constitutional law, is the republican one, that no power is ever to be exercised as of 570 APPENDIX. personal right. In America, by reason of the equahty of the citizen, the principle naturally existed by virtue of their condition, that no individual had any right to exercise authority over any one else, and it naturally resulted that no power could be exercised excepting by the consent of the governed. The second novel principle adopted by the American people, is that they deliberately proceed to limit all power. Indeed, they set hm- itation upon their own power. If these principles are understood, we may appreciate what is meant by a government of laws and not of men. Marbury v. Madison ; 1 Cranch, 137 ; Luther v. Borden, 7 How. 1. In America, there is recognized two distinct branches of legislative power. The on§ exercised by the electors, or voters, as the imme- diate representatives of the people, and now habitually exercised at elections and in assemblages, which have become familiar in the States, under the name of constitutional conventions, because their operations are confined and limited to the enactment of political leg- islation. Grimpkis Arg. 1 Hill, South Carolina, 16 ; Jamison Constitu- tional Convention, 31-32. The other is ordinary legislation exercised by Congress, or the state legislators, chosen by the electors to represent the whole people. The former was unknown in England. The new principle which prevails, that no power shall be exercised as of personal right, but officiall}', as a trust, resulted in an entirely new application of the old idea of representation and put a new aspect upon the doctrine of consent, very different from the old idea. It is the doctrine of the volmitary consent, or convention or agreement of equals, not the doctrine of submission. The question arises, by the consent of whom ? The consent of the people as a body, or the consent of the individuals ? It is an axiom in American law, that government derives all its just powers from the consent of the governed, not from the submission of subjects to a government promulgated by a supreme power. It would be a peculiar idea of consent if no choice was allowed. The manner in which the consent is said to have been given by those living con- temporaneous with the time, determines whose consent was con- sidered to be necessary, and expressly answers the question, who were the people at the time of the revolution ? " It is to be remarked that in the various nations, even in the rep- resentative government of the United States, the consent of the entii-e body of the people has never been expressed, as ' the people ' comprise all of the women and children of every age and class. But they were not ' the people ' in the same sense, until the constitution was adopted. A certain number of men have assumed to act in the name of all the community." 1 Sharswood Blackstone, 147 N. 11 ; Ware v. Hylton, 3 Dall. 333 ; Dred Scott case, 19 Howard ; Federalist, 40. APPENDIX. 571 But how, says Justice Sharswood, can the consent of the governed be in any sense implied, if the citizen is coerced to remain a member of the State through all the changes which its form of government may undergo, whether with or without his approbation ? It is clear that in any such change he may remove himself and his property to another country if he chooses. This course was adopted at the period of the American revolution. All persons, whether natives or inhab- itants, were considered entitled to make their choice, either to remain subjects of the British crown or become a citizen of one or other of the United States. In some cases that time was pointed out by ex- press act of the Legislature. Ingalls v. Trustees, 3 Peters, 158 ; 1 Sharswood Blackstone, 47, note. In order to make such persons members of the State, there must be some overt act of consent on their own part, showing an intention to assume such a character. Ingalls v. Trustees, 3 Peters, 158. In all States some must originally assume to act. In some States, those who act assume to act in their own right, thus usurping the right to govern. This is the origin of the feudal sovereignty. Chis- holm V. Ga. , 3 Dall. 416. In the formation of our government by express declaration, those who assumed to act in any capacity and in each step towards the formation of this government assumed to act, not on their own behalf, not of right, but in the representative capac- ity in the name of the people of these colonies. Federalist No. 40 ; Ware v. Hylton, 3 Dall. 232 ; Declaration of Independence. It is only such acts as are professedly performed in the name of another that need to be or can be ratified, by seeking the ratification the persons acting admit the necessity thereof. This doctrine of consent by exercising the right of election is the basis of each man's consent to the form of government. Ingals v. Trustee, 1 Pet. 158-167 ; Talbot V. Jansen, 3 Dall. 18. Our constitution before the adoption was nothing else than an in- formal proposition, submitted to the people for adoption. There was no authority to call a convention of the people. Fed- eralist No. 40 ; Duer's Outline. This constitution creates direct relations between the United States government and individuals. White v. Hart, Wall. 650 ; Chisholm V. Ga., 2 Dall. 435. This constitution is the only grant, warrant, charter or authority which any person whether body politic, class or individual can refer to as justifying the exercise of any power. Pen- hallow V. Doan, 3 Dall. 93. The State, says Justice Wilson, may be described as a complete body of free persons united together for their common benefit to enjoy peaceably what is their own. The only rational and natural method of constituting a civil society is by convention or consent of the members who compose it, for by a civil society we properly o72 APPENDIX. understand the voluntary union of persons in the same end and in the same means requisite to obtain that end. Wilson's Works, Vol. 1, p. 305. In this social compact, each individual engages vrith the whole col- lectively and the whole collectively engages with each individual. Id. In free states, the people form an artificial person or body politic. They form that moral person to which we assign, by way of emi- nence, the dignified appellation, the State. The people of the United States did not surrender the sovereign or supreme power to the State. In Chisholm v. Ga., 2 Ball. 463, the first case concerning a constitu- tional question, the question is asked, " Who were the people?" the answer is, "They were the citizens of the thirteen colonies." In the case of Penhallow v. Doane, 3 Dall. 93, in the United States Supreme Court in 1793, Judge Patterson says: "A distinction was taken at the bar between a State and the people of the State. It is a distinction I am not capable of comprehending. By a State form- ing a republic, I do not mean the legislature of the State, the execu- tive of the State or the judiciary, but all the citizens which compose that State, and are, if I may so express myself, integral parts of it, altogether forming a body politic. " The great distinction between monarchies and republics is, that in the former, the monarch is considered as the sovereign, but in a republic all the citizens are equal and no citizen can exercise any authority over another, but in virtue of a power constitutionally given by the whole community, and such authority when exercised is in effect an act of the whole community." Chief Justice Jay, in Chisholm v. Ga., 3 Dall. 472, says that, "the feudal idea runs through the jurisprudence of England. No such ideas obtain here. At the revolution the sovereignty devolved on the people, and they are truly the sovereigns of the country, but they are sovereigns without subject (unless the African slaves among us may be so called), and have none to govern but themselves. The citizens of America are equal as fellow-citizens and as joint tenants in' the sovereignty." It is maintained in the Dred Scott decision that the words " People of the United States and citizens " are synonymous terms, and mean the same thing. They both describe the political body, who accord- ing to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we famiharly call the sovereign people, and every citizen is one of this people, and a constituent member of this sov- ereignty. Judge Taney agreed with all the rest that the free negro might be a citizen of a State, and the undisputed facts were that the free negro had been given the right of suffrage before the Constitution, and in APPENDIX. 673 several of the States after the Constitution, but he held that a negro who himself had been a slave, or any of whose ancestors bad been slaves, could not become a citizen of the United States, and that a State Legislatui-e had no power to invest him with that status. No one contended but that every citizen was one of the people. In the case of Blair v. Ridgely, cited by Judge Cooley, the opinion of the court recites that in several of the States the free blacks were given the right to vote, and that afterward the suffrage was taken away from them, and noticing this fact as an argument that suffrage is not a vested right but a mere privilege. Having shown what was understood as the meaning of the word people at the time of the Declaration of Independence, and up to the period of the war, it is unnecessary to enter into an investigation of the doctrine of suffrage. Nevertheless, the argument would be scarcely complete without stating the doctrine that those persons who are instrusted with the ballot are considered according to the theory of our constitutional law to be merely representatives of the whole body of the people, and merely hold an office or trust, but that such a right is not a vested one. This was clearly brought out in the constitutional con- vention of New York in 1846. The office and duty of electors is but a part of the machinery of the government ; but as we have seen no man, class, convention or body ever attempted to exercise any authority or right other than in the name and by the authority of the people of the State. It would be interesting to notice the difference between the origin of suffrage in England and America. Those who are interested enough in their own liberties to understand these things, may find them clearly explained in Webster's argument in the case of Luther V. Borden, 7 How. 1, and the case of Blair v. Eidgely, 41 Mo. 63, where the question is consistent. The doctrine asserted by Mr. Field leaves the adult and unmarried female without even the shadow or theory of representation in the government. Such a doctrine is much behind the idea of representa- tion under the Roman constitution, where every person of every sex and age belonged to some family and the head of the family repre- sented all the members of the family. In feudal England the feudal lord was the protector and representative of every vassal and the sovereign lord the representative of them all. This new idea is a doctrine fraught with dangerous consequences. The idea that every foreigner is taught that he becomes, when naturalized, a sovereign to our own native-bom citizens is little short of absurd. Is the rising generation to be taught that we have a citizenship which is subject to another class which is sovereign ? There was nothing absurd, unreasonable, dangerous or despotic in 574 APPENDIX. the idea that the males should represent the people as their agents or trustees, but the idea stated by Mr. Field is despotic. The lavishness with which the suffrage is granted to ignorant aliens is degrad- ing to our free institutions and not calculated to improve American institutions, but, coupled with such a view of sovereignty it is poli- tical suicide. If more time were spent in the study of the writings and opinions of our forefathers who founded this government, and expounded its fundamental principles, our people would know more of the nature of our own government. The remark of the same learned Judge Wilson very justly sums up this whole question : " Was sovereignty created by the Constitution ? As all members of society are naturally equal, it may be asked how is this superior to be constituted. I very well know how a State once formed can constitute their trustee, but I am yet to learn ho w it can create a superior. Is there any other human source from- which superiority can spring? It is thought there is. It is thought that human submission can eflfectuate a pur- pose for the accomplishment of which human suffrage is found to be unavailing. Must submission to equality be a yoke under which we must pass before we can diffuse the mind-power or participate in the benign influence of law f " INDEX. INDEX. Abdication — page how evidenced by king ii. 564 Absolute Powers Blaclistone a supporter of '171 unnecessary 161 Paley's view of 200 no longer recognized ii. 309 Absolute Bights- origin of term 309 defined by Blackstone ii. 298 not recognized ii. 309 Achaean League ii. 289 Addison — commends Plato and TuUy 115 quoted ii. 311 Admiralty Jurisdiction (see Jurisdiction) — of the United States Court iL 89 iEtolian League- like that of Achaeans 290 Age— aflfecting civil and political rights ii. 34 Agriculture — eflfeot on ownership of land ii. 490 Alexander- envied Acliilles on account of Homer i . . 2 taught by Aristotle 27 his value of knowledge 28 Alfred the Great- fosters education ii. 104 laws of 444 Aliens- defined ii. 272, 391 disabilities of . . . ii. 393 577 678 INDEX. Aliens — Continued. page ownership of corporations dangerous ii. 295 should be naturalized ii. 288 friends and enemies distinguished ii. 290 Allegiance— a personal tie 279 is to the king, not to the kingdom ii. 536 nature of ii. 539 contrasted with obedience ii. 416 perpetual 279 contrasted with citizenship 279 meaning of, in the United States ii. 266, 267 feudal notion of abandoned ii. 277 Allegiance Case— ■ the South Carolina 279 All Lawful Government Pounded on Consent — Wilson aflSrmed in 1774 , ii. 508 " All Men are by Nature Equal and Free " — Wilson affirmed in above word in 1774 ii. 507 Amendment- constitutional ii. 88 effect of the eleventh . . . ii. 88 America- will outshine glory of Greece 2 American Colonies- how established ii. 537, 538 speech in vindication of .' ii. 547 doctrine of independence of ii. 534 their true relation to Great Britain ii. 634, 535 proper and legitimate obedience and loyalty to king. . . ii. 536 judicial appeals were to king in council ii. 529 right to resist invalid laws, ii. 547 stripped of legislative and judicial power ii. 551 the claim of conquest refuted ii. 532 not a conquered country ii. 538 Amef'ican Court, The 1 American Law {see Law)— should be taught the young 17 Amphyction — founder of Grecian Council 388 Amphyctionic Council- nature of 386 Analysis- difficult to frame 40 inaccurate, confusing , 53 INDEX. 579 Analysis and Definition— paqb nerves of science 52 Analogy- use in evidence , 510 Anarchy— the menace of republics 540 venality the source of 540 Ancient Republics- cause of fall 320 Appeal- meaning of, in English law y. 340 is a civil action for crime ii. 449 importance of right 353 Appointing Power- importance and danger of 359 et seq. Apprentices '. ii, 331 Arbitration— . in private matters 113 international, suggested 337, 333 sanction in 339 Aristocracy — erroneous view of 372 wisdom of, refuted 393 Aristotle — definition of equity ii. 133 his fundamental axiom 51 too much deference paid to 65 mentioned 13, 64, 65 view of government 64 Assault and Battery— prima faoicB innocent ii. 393 Assumpsit — origin of money action ii. 134 Attorneys and Counsellors — condition at Rome ii. 353 origin of coifs ii. 344 preparation for the Bar ii. 246 how appointed ii. 246 qualification of ii. 347 oath of ii. 248 should the law be a profession ii. 348, 249 views of French writers upon ii. 249 Aula Begis— constitution of ii. 82 origin of ii. 82 37 580 INDEX. Aula Begis — Contimied. page ambulatory at first ii. 83 Aiilic Council ii. 291 Authors — modem modish criticised 115 Axioms (see Maxims) — foundation of mathematical knowledge 516 are first principles 347 utility in science 347 Bacon's arranged by Newton 251 Bacon — definition of custom 89 guided Newton and Grotius 130 independence of thought noticed 65 treatment of the law ii. 353 views of, colonial legislative power approved 472 Bank- power of United States^to incorporate ii. 550 Bank of Nortli America- argument upon ii. 551 power to incorporate ii. 551 history of ii. 552 Bank of Scotland- effect on the country , 571 Banking — object and influence of 570, 571 Barbeyrack— his view of the social convention 68 cited 198 Barristers (see Attorneys and Counsellors). Beccaria— view of political liberty ii. 312 Belief (see Evidence) — depends on perceptions 204 Berkeley, Bishop of Cloyne — principles of human knowledge 61 Bishop of Tours- quoted- 70 Bishop Taylor — upon divine right 83 Blackstone— inaccuracy of views 15 criticised by Dicey 15 prejudices of 15 INDEX. 581 Blackstone — Continued. page treats power of people as a political chimera 15 should not be taught alone 17 changes in Commentaries 19 should be read 20 definition of law criticised 54 source of his definition 61 copied Puffendorf 62 no English authority for definition of law 162 definition of law unsuited to America 170 view of public law unreliable • 20 view of origin of government 75 advocated extreme legislative power 19 jealous of monarchy 19 exaggerated royal authority 384 criticisms by English authority 383 Boeder— on supreme authority 80 Bolingtaroke — praise of English Constitution 382 ridicule of sovereignty 66, 67 wrote well on politics 38 wrote ill on religion 38 Brennus— mentioned 63 Bribery— of officials by corporations ii. 267 the downfall of Greece ii. 268 British Constitution— a limited monarchy ii. 517 beauty of ii. 520 controlled by Parliament 543 of Saxon architecture 448 examples of resistance against breaches by king ii. 554 British. Parliament — no power to change colonial charters ii. 556 British Crown- constitutional limitations of ii. 557 British Jurisprudence — resemblance of ancient to modern English 44 Britons — ruled by customs 88 Brown, Justice- views upon corporations ii. 282 his sense of danger from ii. 282 582 INDEX. Brutus— PAGE professor of law 28 Burke, Edmund- mentions American spirit of liberty 6 his notion of government ii. S74, 297 Burlamaqui— defines law of nations 138 follows PufEendorf on superiority. . . . .• 82 Csesar, Julius— in Britain 487 Caligula— on superiority 83 Capital Punishment — rare in Saxon law ii. 361 in Ireland, Wales, Egypt ii. 362 Calvert— Lord Baltimore— inaugarated religion tolerated in America 4 Cato professor of law S8 Certiorari — to Justice Courts ii. 117 Chancellor— originally a ministerial officer ii. 126 his duty of issuing writs ii. 126 Chancery- rise of the Court of. 123 et seq. not originally an Equity Court ii. 125 Checks and Balances — desirability of 354, 355 Checks— by division of power ii. 28 Christianity (see Religion)— in conquest .■ ii. 291 moulds public opinion ii. 318 part of common law il. 425 Cicero— a professor of law 28 calls common agreements law 89 Cincinnati, The— how formed 433 Citizen — should study government 7 duty to understand public measures ii, 11 INDEX. 583 Citizen — Continued. page part of sovereignty 8 one of the people ii. 273, 566 may have different characters ii. 273 Aristotle's definition of ii. 273 legislative liglit of ii. 273 of United States '. ii. 273 private, -will subordinate ii. 274 duty of civil obedience ii. 274 severe duty of unselfishness ii. 279 of one State entitled to privileges, etc 313 inherent rights denied by Blackstone 383 Citizenship- nature and character of 279 Roman idea of 281 not dependent on place of birth 463 Civil Government- duty of people ii. 7 Civil Law- indebtedness to Grecian lavr 432 Civil Liberty- greater than natural 535 defined 538 Wilson in 1774 quotes Burlamaqui's definition ii. 508 Civil Power— Puflfendorf's view of I99 Civil Society— the same as State 271 Classification of Law— Blackstone's, discarded 40 Classification— the basis of science 51 Code— the Roman, how framed 433 Coke- misquoted by Blackstone 164 Colonists- American 462 subjects of the king 474 Commerce — prerogative of the king over ii. 542 dependence upon banking 572 effect of importation 374 Congress to regulate ii. 58 government encouragement of , ii. I39 584 INDEX. Commercial Law— page see Law, Merchant 336 Commissions — all the king's colonial commissions void ii. 561 Comm.on Law- is customary law '. 89 examined and explained 419, 476 what it is 419, 423 not a statute worn out 458 Saxon rather than Norman 445 authority and evidence of , 453 not necessarily English 424 a law of experience ii. 251 general principles formed from regulm philosophandi. . ii. 251 development of 425 Grecian ideas in 426 depends on custom 186 law of liberty 195 origin of doctrine that it did not extend to plantations, ii. 391 in force in the colonies 464 goes with subject where he goes 462 assimilates other systems 459 birthright of, subject everywhere 462 Com.moii-law Reports ii. 254 Commons- dependence of crown upon 401 exclusive control of taxation 401 represent people 173 Commons, House of— only representative body 389 Community Property- American experiments ii. 493 Compacts- are either treaties or sponsions 155 Compact- between king and people mutual Li. 556 Confederacies- histories of 285 ancient, a6ted upon States 285 Confederacy — plan for great European 297 pi-actised by Germans 294 old U. S. power to incorporate bank 549 Confederate Republic — meaning of 812, 529 INDEX. 585 Confederate Republic — Continued. page United States a 529 best for United States 538 Confederation- defects of the old 540 articles of, did not abridge powers of United States 560 Congress- powers and privileges definite ii. 35 each house judges qualification and election of members, li. 35 powers conferred by constitution ii. 56 enumerated powers ii. 56, 57 power to punish members ii. 38 power to make rules ii. 39 cannot destroy its grant 566, 567 inherent powers 549 power to incorporate bank 556 has inherent powers when 557 power to create States 561 represents nation 387 separate bodies ii. 8 powers of houses ii. 34 Consent— the basis of law 57 only source of power 74 Declaration of Independence on 75 basis of free government 91 by it individual bound 378 sole claim of human authority 190 human edicts derived from 198 every obligation arises from 198 ought to be expressed, or by clear presumption 383 development of doctrine 185 declaration of Parliament on 186 the convention of society 68 in law of nations 131 Conscience- function in construction 112 Constable- ancient executive officer ii. 363 his power to arrest ii. 363 power to appoint deputy ii, 363 Constitution of United States— a new invention 529 Constitution — Americans devised written 374 586 INDEX. Constitution — Continued. page guides and directs government 374 Paley's use of the word 386 principles different from government of England 14 vital principle is sovereignty of people 14 rests on individual obligation. 207 what it is 374 the source of governmental power 374 character determined 189 enumerated powers 558 object of .' 542 difference between National and State ii. 56 superiority of 14 government cannot change 375 right to change 141 citizens' power to abolish, alter, or amend 14, 15 cannot please every citizen 534 controlling legislation an improvement in science of gov- ernment , 543 establishing new, does not avoid obligations 146 Constitution, Federal- Constitutional Law- former mystery of ii. 11 public attention to ii. 11 legal tender acts 556 inherent power of general government 556, 559 legal tender acts, how justified 549 no longer mysterious 550 meaning of 885 how far Act of Parliament unconstitutional 411, 412 powers expressly granted interpreted 556 Contract- legislative grant is 566, 567 charters of corporations, how far 567 Conquest — English fiction in regard to colonies ii. 533 Coronation Oath 180 Coroner- power and duty ii. 242, 243 Convention of 1787 — diflfioulties confronting 525 Corporations- how created under civil law 561 by the common law 267, 561 definition. . . . -. ii. 265 INDEX. 587 Corporations — Continued. page power of removing members ii. 270 . power to make by-laws ii. 270 includes civil societies 273 ownership by aliens ii. 295 lacks moral obligation of citizen 283 ; ii. 280 dangerous tendency of 319 ; ii. 280 tendency towards monopoly ii. 265 degenerating tendency of ii. 267 a menace to liberty ii. 282 present menace to liberty ii. 266 should be inspected with care ii. 266 visitorial powers over ii. 271 courts originally inspected ii. 371 in the colonies 561 during colonial period ii. 266 should be erected with caution ii. 366 municipal control ii. 280 should be restricted in power ii. 268 implied powers of ii. 269 dissolved by death of members ii. 271 by judgment of ouster ii. 271 Counties- division of England into ii. 98 under the Saxons 427 Courts— in many judges have not professional acquirements 10 necessity for integrity in ii. 284 definition ii. 75 Areopagus' great court of Greece ii. 76 origin of Saxon ii. 79 of the hundreds ii. 79 origin of aula regis ii. 147 should be accessible ii 148 nature of ii. 147, 156 proper classification is, general and special jurisdiction, ii. 156 English until Edward I ii. 75, 87 constituent parts of ii. 157, 161 of record and not of record ii. 154 distinction made after the Conquest ii. 155 reason for distinction ii. 155 quarter sessions in England and Pennsylvania ii. 119 narrowness of common law ii. 138 of Common Pleas, improvements of ii. 86 Exchequer ii. 87 King'sBench ii. 87 588 INDEX. Court of Chivalry— page see International Law ii. 140 Counterfeiting— Rhode Island Act 553 Crime — involves a private injury ii. 340, 360, 376 a crime defined ii. 338 close association to private injury ii. 339 committed by wife formerly charged against husband. . ii. 325 Criminal Law- intended to prevent crime ii. 388 trial courts of ii. 121 early English, disgraceful ii. 346 should be founded on morality li. 347 reform in United States ii. 347 to be construed according to spirit ii. 71 position of State in ii. 201 ground for indictment ii. 213 standard of pvmishments ii. 344 design of punishment ii. 345 inaccurate views concerning ii. 338, 339 scope of term the peace in ii. 109 foundation of 262 early views of crime ii. 340 utility in punishments ii. 363 speedy trial undesirable ii. 366 punishment should not affect innocent ii. 367 utility of forfeiture ii. 368 forfeitures based on theory of property ii. 371 reasons for corruption of blood ii. 371 forfeitures do not affect kin in United States ii. 375 degrees of crimes ii. 341 degrees of guilt ii. 434 Paley and Beccaria, ideas of degrees of crime ii. 342 punishments commensurate with crime ii. 372 punishments measured by nature of crime 448 cruel and unusual punishments prohibited ii. 449 reason for degrees of guCt ii. 351 attempts, guilt of ii. 256 importance of intent in , . , ii. 350 overt act ii. 357 intention in ii. 359 prevention, of offences ii. 439 bail to keep peace ii. 439 citizens' rights to prevent crimes ii. 441 INDEX. 589 Criminal Iiaw — Continued. page presentment to grand jury ii. 451 indictment , 11. 453 ancient severity of trial 11. 461 civil action of appeal for il. 449 information and qui tarn actions ii. 450 Persons capable of committing crimes 11. 434 et seq. Apprehending, trying and punishing offences 11. 445 criminal warrants Ii. 445 arrest by private person 11. 447 right to kill criminal 11. 454 admitting to bail 11. 448 accused should not be fettered unless violent ii. 455 pleading or standing mute, ancient severity il. 457 accessory, aiders and abettors 11. 435 misprision of crime 11. 437 Jury trial in — right to counsel ii. 473 right to witnesses ii. 473 importance and effect of confession Ii. 463 unreliability of confessions. ... 11. 463 defences to Indictment ii. 465 qualification of jurors ii. 468 selecting jurors 11. 470 Crimes— Crimes against individual property 11 876 forgery ii. 348, 849, 350, 377 forgery, etymology of 11. 378 counterfeiting 11. 378 larceny ii. 379 robbery ii. 383 robbery distinguished from larceny ii. 384 should be punished vrlth severity ii. 385 arson ii. 386 punished capitally by Saxons ii. 887 burglary H. 357, 388 Crimes against liberty and reputation ii. 390 false imprisonment ii. 393-3 libels ii. 393 truth In justification ii. 395 Crimes against personal safety ii. 398 assault and battery ii. 398 affrays Ii. 398 challenge to fight duel il. 400 riots and routs ii. 401 590 INDEX. Crimes — Continued. page mayhem ii. 403 abduction and kidnapping ii. 403 rape, punished with death by Saxons, and in Penn- sylvania ii. 403 The law of homicide ii. 408 et seq. homicide, manslaughter, and murder distinguished, ii. 408, 409 Crimes against society ii. 413 treason, early law of ii. 412 treason in the United States ii. 415 treason, meaning of levying war ii. 418 treason, traitor defined ii. 431 piracy ii. 421 Crimes affecting natural rights ii. 433 nuisances ii. 423 common scold, punishment ii. 424 eavesdroppers ii. 424 plasphemy and profaneness ii. 425 Crimes against civil rights ii. 426 barratry ii. 430 bribery ii. 427 embracery ii. 427 extortion ii. 426 official negligence ii. 427 oppression ii. 426 perjury ., ii. 428 subornation of ii. 439 conspiracy ii. 429 altering, defacing, embezzling official record ii. 480 obstructing execution of process ii. 430 escape ii. 431 rescue ii. 433 striking court officer or drawing weapon in court ii. 433 Crown- not always hereditary ii. 63 first inheritable when ii. 63 held by choice of people ii. 305 act for settling succession ii. 305 consequence of open acts of violence by ii. 564, 565 Curia Begis — first judges Normans ii. 155 Custom — in law 57 evidence of consent 88 first laws were customs 88 INDEX. 591 CuBtora—Contimied. page defined by Bacon 89 ancient English 434 Grecian in England 429 in Roman law 435 immemorial, for long inaccurate 436 Declaration of Independence- theory of the document 373 character of 373 destroyed sovereignty ii. 498 an act of united colonies 560 origin of language of ii. 507 all men are created equal : 507 all just powers of government derived from consent, same language by Wilson, 1774 ii. 508 vital principles of, anticipated, Jan. 1775 ii. 547, 556 Definitions — abuse of 50 properties of just 50 definition of a definition 51 of law criticised , 54 Dejoee— establishes government of Media 346 Des Cartes- cited 2U notion of existence 330, 348, 250 Demothenes— an advocate in the courts ii. 78 Denizen- disabilities of ii. 293 owe allegiance ii. 393 Dicey, Professor- how to study a constitution, criticism of Blackstone 14 Diet- representative body of Germany 291 Dionysius— basis of authority of government 64 Discovery— not exclusively to Chancery remedy.^. ii. 136, 137 Divine Law- how perceived 105 known by intuition 105 includes nature and revelation 106 692 INDEX. Divine Bight— page views of ancients , 70 James II. upon 81 Domat upon , 82 the excuse for resisting papal authority 87 Blackstone really supports 171 exorbitant claims of 396 Divorce- law of, at Rome 11. 336 kinds of ii. 326 causes for iL 326 Domat — upholds divine right 71 notion of divine right 82 Dower- policy of 428 Druid- origin of name 437 Duellists- how regarded ii. 434 Due Process of Law — importance of evidence in 477 Dutch Hepublic (see United Netherlands). Eden- view of crimes 11, 342 Education- interest of colonists in 1 early courts in America enforced il. 105 early, should be accurate 201 importance in civil society .ii. 102 care over, in Greece ii. 105 withheld from females ii. 320 Christian broader than ancient philosophies 132 Legal — important to citizens 28 principles should conform to government 33 should be from our own constitution 23 should be improved 23 Edward I.— encouragement of commerce ii. 140 his laws 444 Elections- should be free ii. 14, 15 controlled by corporations ii. 268 INDEX. 593 Elections— CoreiiMwec?. page of members of Congress ii. 8 laxity in voting g Elizabeth- encourages European confederacy 297 Emigration- right of ; 283 Enemy- natural enemy a fallacy 153 England- compared with United States 14 revolutions in 16 English Constitution- equals English law 386 uncertain provisions of 385 nature of 385 subordinate to Parliament 383 Blackstone's exposition unreliable 383 excellent features of 373 English Laws- few apply here 23 prior to Conquest very important 445 goes with colonists 467 Epicurus — notion of divinities 98 estimate of human nature 115 Equality— of members of society 273 meaning of men are equal 273 natural 322 requires consent to obligations 193 Equal Law 275 Equity- probable origin 350 defined ii. 123 no separate court in Pennsylvania ii. 123 Seldon's description of ii. 128 discretionary power of judges ii. 128 development of science ii. 130 nature of equity jurisdiction ii. 123 et seq. law courts may apply ii. 124 natural, obtains in conquered country ii. 291 Escheat— upon attainder ii. 353 reason for, in felony ii, 353, 854 594 DTDEX. Estates in Land (see Property, Real Property)— page early English law of 450, 452 a grant is a contract 498 Evidence- scope of subject 481 basis of Gilbert erroneous 487 basis of ii. 168 in criminal cases , ii. 169 rational basis of 477 due process of law, relation to 477 ancient symbols in 496 human testimony as 498 proper system essential 204 Blackstone and Locke's theory unsound 477 recent growth of law 479 Coke's view of 479 Blackstone's definition inaccurate 480 fundamental principles 487 analogy in 487 demonstrative and moral or probable 518, 519 demonstrative simple 519 moral or probable, complicated.. '. 520 calculates chances 520 is that which forces belief ii. 234 no rules of credibility ii. 225 no rules for degrees of weight ii. 225 competency of witnesses ii. 475 credibility of witnesses ii. 475 written and oral ii. 224 distinction as to competency of ii. 224 artificial rules not discussed 521 importance of pleadings in applying 532 Roman degrees of probability ii. 225 defined '. ii. 226 impracticable to prescribe rules for weighing ii. 165 of sciences ii. 165 tested by experience , 499 opinion and export evidence 505 competency, rules of, weight ii. 226 competency, the best required first ii. 226 relevancy affected by public poUcy ii. 228 admissibility not always determined by logic ii. 229 relevancy ii. 227 witnesses' interest in suit ii. 228 presumptive proof. ii. 477 INDEX. 595 'Evidence—Continued. page probability ii. 478 use of inferences 507 presumptioxr and- probability- 519 Executive Power — where lodged in England 384 should be united ii. 60 of the United States ii. 60 how exercised before revolution 356 prejudice against 357 should be single 358 unity desirable in 358 restraints upon external 358 despatch necessary 358 secrecy desirable 358 appointing power 359 Exile- privilege allowed to criminals ii, 363 Expatriation- English maxim of 378 doctrine in 1813 381 Ex Post Paoto— resolutions not law 58 Extradition — duty of 333 False Imprisonmejit ii. 393 Family- the basis of society 383 Federal Government— what it should embrace 533 enumeration of powers 533 Feudal Law- innovations on common law 446 Feudal System- some features of confederacy 390 in Germany, , 390 lord and villain ii. 334 Feudal Tenures- rise of ii. 497 important features of ii. 498 only partially abolished ii. 499 what features retained ii. 498 First Principles— how supported 331 38 596 INDEX, Foreign Relations— page through general government 315 Force (see Introduction) — as basis of government 63 Fortesque— advice to the prince 12 value of general principles 12 Frederick the Great — denies divine right 84, 85 recognizes people as source of authority 85 views of sovereignty , ii. 154 Freedom- elements of Saxon ii. 6 of speech ii. 287 Freemen— vrhy so called ii. 5 Gibert— basis of treatment of evidence ^ . . . 245 Goguet — view of right and wrong 197 union of families 197 Government — but an agency 76 is intrusted, not vested 75 diffioultj'' of constructing 308 distinguished from society 74 change of, does not destroy society 343, 381 civil, followed society 271 change of does not destroy law 17 formed to secure rights ii. 307 in Britain ii. 5 British, never arbitrary ii. 557 of United States, fundamental principles of ii. 9 various foundations of 370 generally established by force, fraud, or accident 529 consent the obligatory principle of 198 should be by ourselves ii. 274 Mr. Burke's political creed ii. 274 instituted by man for man ii. 296 instituted to secure liberty ii. 297 respect for .ii. 279 basis of ii. 284 of United States not for local purposes 318 INDEX. 697 QoveTwaxent— Continued. page necessity of 344 system in, necessary 345 which form most ancient 348 powers of, distinct 367 no simple form feasible • 545 division of powers 169, 353 should be entrusted to different bodies 365, 366 mutual dependence of departments 868 Governments- origin of dififerent 371 forms of 371 Government of the People- meaning of ii. 278 Goverment of Law — conception of ." 353 Greece- character of kings 351 Grecians — called laws covenants and agreements 90 Grecian Commonwealths- high character of • 3 Grotius— questions Aristotle 65 views of sovereignty 81 opposed sovereignty of the people 69 doctrines received cautiously 131 Habeas Corpus — early colonial legislation ii. 96 Habit— controlling influence of ii. 103 Hale— commends the common law 456 Hammond, Dr. Wm.— approves Wilson's criticism of Blackstone 54 Harold — claims of, to crown 349 Hartley — cited 333, 334 Heineccius — view of soverignty 71 Henry TV.— plan for confederacy 297 598 INDEX. Hobbes— page mentioned 62 dislike for popular government ii. 103 Homer- cited 2 knowledge of societies 348 notion of government 348 enumerates people of Athens ii. 4 cited in Athenian courts ii. 5 precision in legal matters ii. 4 Homicide (see Criminal Law) — prima faoice innocent ii. 393 penalty for unfortunate ii. 435 Hooker — description of law 49 cited 55-, 198 Hottoman— sovereignty of people 71 House of Representatives- how elected ii. 16 originate revenue bills 403 Hume- causation and existence 320 Husband and "Wife- disabilities of ; ii. 325 he formerly chargeable for crime ii. 835 incompetent witnesses for or against each other. . ..... .ii. 335 Iceland — nature of government of 396 Ideas- philosophy of 315 modem conception of 333, 385, 240 Impeachments — must arise in the House ii. 44 defined ii. 45 confined to political offences ii, 46 Implied Powers— of constitution , 549 Indenture- nature of 171 Individual— not so important politically in England 41 responsibility bottoms our fabric 207 UTDEX. 699 Individual — Continued. page obligation, foundation of our constitution 307 natural social relations of 151 can bind himself 193 dignity of ii. 300 interest in law of nations 138 Individual Right- main object of government 319 Injury- defined ii. 338 Instinct- depreciated by rationalists 118 real importance of 118 et seq. Institutes- recognized written and unwritten law 435 Integrity — importance of individual 143 International Arbitration- should be established 327, 338 International Law {see Law of Nations) — new name for law of nations 128 Bacon guided Grotius in 130 Court of Chivalry cognizance of ii. 140 law, merchant, part of ii. 189 depends on acts of citizens 129 citizens should understand 129 imperfect knowledge of 130 obligation of 133 sources of 133 how far based on consent 131 voluntary, based on consent 155 distinguished from municipal 133 peculiar operation in United States 139 private property in 329 private 331, 343 improvement in application ^41 Interpretation — governing maxim 11 Judicial Districts— of United States ii. 90, 94 Judicial Power— of the United States ii. 88 duty to distribute justice 364 600 INDEX. Judicial 'Power— Continued. page new view of, in America 363 et seq. observes law of nature and revelation when 414 to declare unconstitutional act void 189, 415, 416 not strictly executive 363 nature of 363 may prevent legislative extravagance 188 over States ii. 153 in matters of treaties 340 Judicial Department ii. 75, 146 not a representative body. . . / 388 Judiciary (see Courts) ii. 147 necessity for independence of ii. 147 proper arrangement of ii. 149 independence of ■ 408 tenure of office 410 Judges- are not all lawyers (1790) 10 should attain professional knowledge 10 should have respectable knowledge of law 10 should have knowledge of antecedent law 11 should they teach law 25 desirable qualities of ii. 157, 158 United States, hold during good behavior , ii. 89 assist jurors 9 Judgment — nature of ii. 195 nature of faculty 335 Juries — nature of trial by ii. 163 origin of the system ii. 172, 173 number of jurors ii. 173 Jurisprudence- necessary part of university education 13 depends upon reason and moral sense 134 knowledge necessary to treatment ii. 356 indebted to Greek philosophy 436 common law a system of 459 slow development of 369 obstacles to understanding 376 Jurisprudence, English- elements of 385 Jurors- should possess spirit of just discernment 9 should have knowledge of law 10 INDEX. 601 Jvaora— Continued page answer questions of fact 10 dignified function of 10 right of judging for themselves 10 can have assistance of judges 10 how far judges of law , ii. 217 cannot be fined for verdict ii. 218 cannot be compelled to agree U. 193 cannot question constitutionality of law ii. 219 cannot be required to return verdict ii. 220 practice of withdrawing one ii. 193 Jury- inflicts crimiftal punishments 9 origin of , 430 of twelve during reign of Alfred ii. 180 number not the essential point ii. 180 of twelve before the Conquest ii. 179 of thirteen ii. 179 selection of, in Rome ii. 174 Roman, were judges of law and fact ii. 175 likeness to Roman judicium 430 in Greek and Roman jurisprudence 430 unanimity not anciently required ii. 180 when requisite of unanimity established ii. 181 right to return special verdict ii. 213 how far judges of law and fact ii. 320 their province over facts ii. 198 power in weighing evidence 500, 507 treatment of obdurate 197 pleasant diversion after verdict 198 manner of reaching verdict ii. 191 mode of securing unanimous ii. 12, 196 Jury, Trial by — value and utility of ii. 234 narrow extent of, before present constitution ii. 116 did Caesar establish, in Britain ii. 176 Seldon's view of origin ii. 176 common among the Saxons ii. 177 not of Norman origin ii. 178 a trial by evidence ii. 168 its proper limitation ii. 145 unsuited to mercantile transactions ii. 145 importance in small matters ii. 117 unanimity in civil cases ii. 185 doubt in criminal cases ii, 201 602 INDEX. Jurisdiction — page United States Courts over Admiralty cases 87 Jus iEquum— equal law of Romans 275 Justice — sacred between nations 147 Justice of the Peace- jurisdiction ii. 110 tenure of office ii. Ill civil jurisdiction of ii. 112, 113, 115 appeals from ii. 115 certiorari to ii. 117 Justinian — attention in preparing plans for studying law 13 Kaims— estimate of lawyers 38 mentioned 55 Kepler — discovery of eye picture 242 King- Saxon kings elected ii. 61 election of 349 not always sovereign 349, 350 not a representative , . . . 173 ubiquity of English 395 immunity from censure 399 counsellors 399 English chosen to administer justice 350 governed by natural equity 350 power is a power according to law ii. 561 illegal acts void ii. 561 commissions void unless legal ii. 561 his legitimate province ii. 563 consequences of illegal violence by ii. 563, 565 can do no wrong does not apply to open acts ii. 564, 565 Knowledge- gained through senses , 219 Iiselia — praised by Cicero 33 ianguage— the picture of thought 108 Law— sometimes ridiculed 47 INDEX. 603 Iiaw — Continued. page nature of , 49 coincidence between philosophy and ii. 478 treated like speculative philosophy ii. 253 depth of study ii. 356 a learned profession ii. 257 science of, should be studied by every citizen 7 rudiments not difficult 7 principles should be universally known 8 should be studied as historical science 3 should be understood by legislators 11 value of plan of study 13 the scientific treatments of ii. 355 in England eight houses of chancery for students of inns of court 13 should elements of education come from foreign country 13-14 principles of our law should be studied first 13-14 science taught in Rome 28 Cicero describes universality of 135 what it'embraces i 50 difficulty of defining 50 definitions criticised 54 importance of definition 61 Puffendorf 's definition 63 Puflfendorf 's view of 177 source of Blackstone's definition 163 sometimes called a common agreement 89 consent the basis of obligation 88 a convention of the citizens 90 Grecians called covenants law 90 Cicero calls law right reason 135 long use and custom is 186 baaed on consent : 198 birthright of subjects everywhere ii. 509 common measure of prerogative and liberty ii. 558 and liberty must be understood 6 without liberty is oppression 6, 7 Iiaw, Merchant- universality of 335 should be uniform in different States 335 not mainly a municipal law 337 part of the law of nations ii. 139 study of required ii. 140 cognizance of Athenian magistrates ii. 143 colonial and national ii. 143, 144 604 INDEX. Law of Kations (see International Law)— page law of nature applied to States 128 needs a better name 133 Law of Ifature — universal character of 124 progressive in operation 127 when applied to States equals law of nations 128 confused notions of 133, 134 how discovered 101, 102 Laws— diflEerent kinds of 91, 92 how passed ii. 47, 51, 53 abrogated by desuetude 455 Law Books- become obselete, how 455 Legal Education- foundation should be in American law 24 study necessary for 13 Lawyer- character and dignity of .' 38, 39 idea of character of ii. 258 description of ii. 41 Law and Equity- distinction between should be preserved ii. 134 courts of, contrasted ii. 123 et seq. contrasted ii. 129 separate courts unknown except in England ii. 125 reason for separate courts ii. 129, 130 reason for and against separate courts ii. 133, 134 principles, proceedings, and adjudications approximating each other ii. 130 same methods of proof ii. 131 both have jurisdiction of specific performance ii. 137, 138 Legal Tender- Bank of North America bills, how far 551 Legal Tender Acts — depend on inherent powers 549 within inherent powers of Congress 558, 559 Legislature — should meec regularly ii. 36 Legislation- slow growth of science of 454 not a command to an inferior 59 Legslative Power- not sovereign power 160 INDEX. 605 Iiegislative Fower— Continued. not supreme 170 based on individual consent 198 may be delegated to inferiors 187 entrusted to general assemblies 164 restrained by constitution 417 legislative grant on contracts 567 • may not destroy its grant 566 should be divided 353, 358 entrusted to different bodies 355 Iiegislative Acts- three classes of 566 Libels- public consideration of ii. 898 Liberty — and law learned together 6 without law is licentiousness 7 what is ii. 298 not surrendered to government ii. 298 not diminished by law , ii. 299 natural, increased by government ii. 300 Liberty, Civil— is natural liberty secured ii. 801 pedigree of English ' ii. 303 not the grant of princes 396 fostered by the common law 458, 459 equal antiquity and stability with prerogative ii. 558 love of characteristic of Anglo-Saxons 3 loss of Americans for, 6 common desire of Americans 527 flourishes with arts and sciences 126 insecure in state of nature 535 depends on limiting power 365 depends on constitution 379 law of the land enemy to ii. 391 of labor ii. 283 relaiiion of criminal law to , ii. 344 Lieber— works cited 207, 208 Life- power of society over 314, 315 Local Differences- unreasonable , 336 Locke — idea of the people 16 606 INDEX. Locke — Continued. page unintentionally injures religion 60 fundamental ideas of philosophy 235 theory of evidence 483 Lord Baltimore {see Calvert)— his character 5 maxim of 5 refused to repeal Maryland toleration law 5 Louisiana Purchase— whether authorized , . 557 Louis XIV.— notions of superiority 67 Lycian Confederacy — commended by Montesquieu 289 Lycurgus 5 Lycians — had no written law 88 governed entirely by customs 88 Lycian Kepublic— described 388 Magna Charta- a law made by common assent 90 declaratory of ancient principles ii. 803 located Court of Common Pleas ii. 84 Man— the individual important 41 position in society ii. 303 different points of view , 303 Marcus Antoninus — cited 70 Marriage — nature of relation ii. 317 Roman, transferred wife ii. 331 dignity of christian ii. 321 a civil conti-act ii. 332 Saxon, did not subordinate wife ii. 324 eflfect of Saxon, upon wife ii. 334 how consummated ii. 333 efEect upon parties ii. 334 ancient ceremonies. 495 Maritime Law (see Law, Merchant) 337 universality of 337 Marshal, United States- character of ofllce same as sheriff ii. 238 INDEX. 607 Maryland — pagk adopted English custom and statutes 466 Master and Servant- right of defence between ii. 330 power of correction ii. 330, 831 mode of hiring ii. 339 duty in sickness ii. 330 death dissolves contract Ii. 830 the rule respondeat superior ii. 833 Maxims (see Axioms) 247 fundamental republican ii. 279 English, of expatriation 278 later law abrogates elder 414 quifacitper alium quifacit per se ii. 333 every crime includes an injury ii. 360 a man's house is his castle ii. 386 originally called his sanctuary ii. 388 very ancient maxim ii. 386 the king can do no wrong does not apply to open acts ii. 564, 556 husband and wife one person ii. 324, 325 ex facto oritur Jus 253 Memory — inexplicable 322 aids to 323 Men- seven different ages of ii. 24 Milton— cited ii. 71 Mobs- liability of township and counties for ii. 441 statute of Westminster relating to ii. 443 Monarchy — simplest form of government. , 348 originally elective in England 63, 63 Money — utility of paper 670 Morality- relies upon reason Ill basis of national policy 307 Monopolies- common law abhors , ii. 333 Municipal Law- primary divisions 43 divisions of ii, g 608 INDEX. Municipal TjOW— Continued. Page use of definitions and divisions in 53 distinguished from divine 64 described 93 definition examined 159 Blaokstone's deflnition dangferous 159 » distinguished from advice or counsel 176 founded in human nature 261 objects of ii. 308 flows from justice ii. 309 Names- may mislead , 130 National Constitution — to establish justice 339 union of individuals 189 National Government- conformity to ancient constitution of England ii. 58 Natural Liberty 276 Nation — may terminate existence 139 duty to occupants of acquired territory 144 may do everything necessary to self-preservation not pro- hibited 141 Nations — and States are moral persons 135 should not seduce foreign citizens 147 should assist each other 148 equality of 324 Naturalization — policy in bestowing ii. 288 policy of 313 ; ii. 293 power of Congress over 313 Natural Rights ii. 296 liberty, security, property ii. 301 civil government to protect and enlarge ii. 335 Nature- human philosophy of 218 imparts sense of right 276 nature, equality, and liberty in state of 32\ no state of ante-dating society ii. 801 Nature, Law of— duty to observe 104 Navigation Acts — opposed in Massachusetts ^ 475 INDEX. 609 Ke Exeat Regnum — page original use of 463 ITeoar— views of religion 150 Negligence— not presumed ii. 406 Netherlands- character of confederacy 219 Nobility- titles of, in England ii. 379 Norman Conquest- conditions at time of 444, 445 changes in law following 445 Nuisance {see Criminal Law) — defined ii. 423 N ulliflcation — doctrine of ii. 8, 277 Obedience- ground of sovereignty 71 necessity and utility of ii. 376 substituted in U. S. for allegiance ii. 416 Obligation- depends on law 103 no superior, necessary 196 of a contract, origin of 183 arises from consent 198 use of term 40 theory of 102 a restriction of liberty 103 principle of 104 Pufifendorf s error concerning 190 States bound quasi ex contractu 373 Obligation of Contract- clause in constitution suggested by Wilson 40, 41 Opinion and Ideas- confused 841 Original Compact— of American society 4 marks extent of political science in Europe (1790) 533 Original Writs- ancient and statutory law of ii. 1S6 Oxford— Vinerian professorship at 13 610 INDEX. Paley— page view on absolute power 300 view of United States 273 Pardons- power of granting ii. 69, 74 Parent and Child- Roman and common law, relation contrasted ii. 327 power of Roman father ii. 327 Roman father could not disinherit capriciously ii. 328 condition of bastard ii. 328 Parliament- branches of 171 act of, a tripartite indenture 171 Blackstone's view of, erroneous 160 source of power 182 power to call and prorogue .ii. 36 writ for choosing members 181 constitution of 391 power depends on representation ii. 510 history of English ii. 512, 516 power over colonies 468 cannot affect district not represented 469 legislative authority of ii. 505 denied over colonies ii. 503, 504 colonies not represented in ii, 522 English decisions concerning territorial jurisdictions.ii. 529, 530 basis of Parliamentary authority ii. 526 authority derived solely from representation ii. 528 beginning of interference with colonies ii. 539 power over colonies originally unclaimed 470 Patriotism- nature of 151, 152, 256 nations should encourage 144 necessity for 319 Patronage- danger of 401, 404 Peace, The— broad scope of the term , ii. 109 Penn, William — his fame 5 Pennsylvania- courts of iu 95 their jurisdiction iL 97 People, The— little notiped in English books ii. 4 INDEX. 611 People, The — Continued. page position in English constitution 168 govemmentof, in Britain , ii, 5 original source of power ii. 13 established constitution ii. 6 power to change constitution 18 cannot assemble in large States ii. 14 may amend constitution 14 cannot arbitrarily change constitution 375 constitution limits of power 375 who are ii. 6, 272, 567 embraces all citizens ii. (note A.) 567 what are they 78 weight of government rests on 9 should retain supreme power 374 never part with power 544 superior to government 543 supreme ppwer in the State 543 People of the TTnited States- dual aspect of ii. 7 Perception- function in jurisprudence 107 Person — meaning of ii. 3 people constitute ii. 6 the State is 322 phases of 432 Hale's treatment of. ii. 309 Personality— of aState 322 Peru- judicial districts of ii. 80 Petingal— idea of Grecian customs in England 429 Philip of Maoedon— engaged Aristotle to teach Alexander 27 corrupted Greeks by bribery 288 Philosophy — essential to lawyers 39 Plan 37 Plato- notions of perception 233 maxim of sociability 267 Pleading- praise of the science ,„., 47 39 612 INDEX. Pleading — Continued. page often misused , 47 importance of mastery of 531 Plough- invented by Osivis ii. 489 Plutarch 63 Plymouth Colonies- first written constitution 463 nature of society 466 Poland unhappy state of people 398 Police- hue and cry, early law of ii. 443, 443 Political Science- founded in America 30 Political Writers- common errors of 20 Pope- idea of existence 319 PopiQar Governments- failures in 371 Polygamy- Christianity disapproves, law prohibits ii. 317 Power- omnipotent 300 Precedent- proper and improper deference to ii. 166 Prerogative — limits of ii. 559 none for colonial commissions ii. 561, 563 President, The— choice of ii. 61 how elected ii, 64 his powers and duties ii. 66 nominations and appointments ii, 67 how far a representative 887 nature of office 387 his responsibility 400 veto of 405 pardoning power ii, 69, 74 Presumptions — nature as evidence ii. 16S Priestley- cited 334 INDEX. 613 Principles— page danger of erroneous 201, 203 Principles of Law- distinguished from rules ,. 11-12 Privilege— of senators and representatives ii. 87 origin of legislative privilege ii. 37 Probability — degrees of, in evidence 228 Proof— the deduction of truth 219 Property— what it embraces 45 a means to an end 27 defined ii. 483 degrees of ii. 483 creature of civil society ii. 309 Marshall's definition ii. 809 a natural right ii. 309, 310 a natural or civil right ii. 371 foundation of ii. 483 Paley's idea of ii. 483 advantages of individual ii. 494 rignt of re-caption ii. 336 Public Honors- open to all 11 should prompt citizens to legislate 11 Public Laws- nature of 385 of States should be uniform 314 Public Opinion (see Religion)— influenced by religion 206 factor in law-making 207 Puffendorf— his definition of law quoted by Blackstone 62 quotes ancient notion of sovereignty 63 genesis of civil sovereignty 77 criticises ancients en-oneously 178 erroneous maxim of 190 Pythagoras— ipsi dixit authority 192 Beal Estate (see Property, Estates) — common ownership of ii, 486 614 INDEX. Beal Astute— Continued. page instsinces of community property ii. 487 estates in land ii. 496 tenure, meaning of ii. 496 introduction of tenures 446 allodial tenures under Saxons ii. 378 military tenures, origin of 449 early Saxon ownei'ship 451 landmarks, ancient mention of , ii. 491 Beason— a guide to law. 58 the first rule of man '. 103 means of discovering truth Ill in judicial ifiterpretation of action 413 invoked in all construction 113 relation to moral sense 114 bounds of its operation 130 kinds of 337 abuse of 231 Reforms- how wrought , 457 jBeligion (see Christianity) — ' toleration in recent origin of 4 views of Neckar 150 aid to reason and conscience 133 importance in society 206 society natural 206 governors deceive subjects in 356 _ influence over marriage laws. ii. 317 influence on law < . . .ii. 817 ■JteligioTis Toleration— flrst practised in America (see Lord Baltimore) 4 law guaranteeing, in Maryland, 1649 4 Reports- richness in common law ii. 254 Representation- narrow view of the ancients 387 American extension idea of 387 in government unknown to ancients 531 in British government 533 how appUed in England 887 narrow scope of, in England 389, 390 United States government based solely on ii. 9 necessary in large State ii. 14 necessary foundation of legislation 470 INDEX. 615 Bepresentation— Cowfrnwed. page right of, based on election 470 extent of, in the United States 391 pervades all branches, of government 532 Mansfield doctrine of virtual ii- 521 doctrine of virtual, refuted ij. 522 Bepresentatives— qualifications of ii- 23 peers of England not 172 Bepresentative— President is, how far 387 Eeprisals— unjustified 328, 331 should be on public property first 330 Bepublican Government— "■ foundation of ii. 10 first maxim of ii- 279 fundam'ental principle of ii. 280 wisdom of guarantee 313 Bepublican Form of Government- meaning of guarantee ii. 17 not conceived by ancients 372 Bepubllcs — ancient not I'eally so 285 Besidenee— affecting political rights ii. 25 Besistance — right to resist breaches of constitution ii. 556 right guaranteed by British constitution ii. 559 extent of the right ii. 564 Bevenue Bills- originate in House ii. 41 Bevolution— principles of 18 does not destroy society 344 right of not constitutional 373 legitimate exercise of 553, 555 Bight of Bulers 65 Bights- classification of ii. 309 Hale's treatment of ii. 309 Bobertson, Dr. — quoted ". ii. 294 Bom.e-- original sovereignty in the people 188 616 INDEX. Boman Law— page in England 424, 437, 438 at meridian in Britain .' ii, 176 probable influence in Britain 440 Bousseau — complains of obscurity of origin of nations 3 idea of superiority 79 Eutlierford— holds society natural 151 Sabaeos— abolishes capital punishment in Egypt ii. 362 Sallust 3 Saundersou — notion of law 62 mentioned 62 Saxons — sometimes means inhabitants of Saxony ii. 183 effect of their conquest of Britain ii. 184 origin of Saxons in Saxony 430 relation to Grecians ii. 177 compared to Athenians 427 invited to Briton by Voltigern 443 less civilized than Britons 443 occupation of England 443 divisions of country and law , 443 Saxon Laws — division of territory 427 gave action to next of kin against slayer 861 Saxon Government- similarity to Grecian ii, 5 Saxon Heptarchy — a weak confederacy 294 Seevolse— professor of law 28 Science- vantage ground of 89 errors in principles 53 acquired by learning particulars 458 Science of Government — state of existence in Europe 20 founded in America , 20 in its infancy 848, 529 progress in 369 INDEX. 617 Science of Law— fAOK necessity of u. 256 science of man 307 Schools — encouraged in New England ii. 104 encouraged by Alfred the Great ii. 104 opposition to, in France ii. 103 condemned by Berkeley ii. 104 Scriptures — value of 122 confirm and corroborate reason and moral sense 123 Secession 8 Seizen ii. 497 Seldon— description of equity ii. 128 views on jury trial ii. 176 views of common law 427 commends ancient law 456 Self-defence ii. 335, 404 extent of the right ii. 335 Self-government — duty of citizen ii. 276 utility of ii. 274, 275 essential principle of , ii. 279 basis of ii. 280 Self-interest — tendency to regard 818 Selfishness- danger from 320 Senators — how chosen ii. 26, 27 Senses — means of intelligence 216 Sergeants and Barristers — character of office ii. 244 SheriflF- how chosen by Saxons ii. 61 originally a judicial officer ii. 236, 243 originally elected ii. 236 appointed under Edward III ii. 237 no longer a judicial officer ii. 239 ministerial power of ii. 240 power and duty ii, 240, 342 Slander and Libel — truth in , ii. 395 filS INDEX. Slander and Libel — Continued. page early law of ii. 395 Smith- Wealth of Nations quoted 569 Social Compact- English theory of 376 of society 273 Society- men equal and free in 275 inherent powers of 18 relies on the young » 27 of the human race 147 the natural state of man 253 natural and civil 270 Blaokstone confounds with government 371 formed by convention 272 not built for rulers 69 precedes government , 343 original source of power ii. 230 institutes government 165 possesses sovereignty 168 delegates' power ^ 169 Society of Nations- extradition depends upon 334 Solon — Koman deputation for laws of 432 Sovereign — may hold of and do homage to another sovereign 333 bound by law of nations 163 Sovereign Power- resides in citizens 14 Sovereign State- meaning of 322 may place itself under protection 333 Sovereignty — citizen part of 8 resides in citizens' 14 vital principle of 14 views of Grotius 31 not understood 21 origin of, unknown 32 new doctrines of 22 source in man 33 indefinition of law 62 based on superiority and power. 63 INDEX. 619 Sovereignty — Continued. page not in legislature 163 creates government 165 wild notions of Blackstone concerning 383-4 Parliamentary question in 1774 507 Shaftesbury— praise of English government 382 Speaker- origin of the designation ii. 40 Serjeant Yelverton made Speaker ii. 41 Specific Performance — exercised in common-law court ii. 137, 138 Speech- freedom of ii. 37 Speeches— in Pennsylvania Convention 525 Spelman — caution In writing 26 Sponsions- defined 155 require confirmation 154 Superior, A — not essential to law 59 none in human law 59 trick of despotism 60 in law, origin of term 63 Superiority — implies inferiority 65 notion examined 66 argument used against American colonies 73 unnatural 67 unnecessary part of Blackstone's definition 83 the germ of divine right 88 unnecessary notion 88 State- equals people ii. 6 should preserve its existence 138 consists in association of individuals 138 duty to members 141 may be divided 141 should be amenable before courts ; ii. 151 should not be privileged from suit by individual ii. 153 should be bound by contracts. ii. 159 acivil society 37I defined 371 620 INDEX. state — Continued. paqe every civil society is 331 should protect foreigners 333 should prolect inhabitants 333 liability for acts of mobs 333 duty of justice ii. 285 States- position in Union ii. 7 autonomy must be preserved ii. 17 are corporations 563 should not make treaty 314 laws operate locally 318 are moral persons 331 constitute society under law of nations 321 independence of 324 State and Federal Power — principle of partition 533 States, The— condition in Union 539 Stadt-holder— an hereditary prince 293 Statute — inference of 11 first rule to discover interpretation of 11 necessity of knowing meaning 11 of England depend on assent 180 Strafford — "Victim of ex post facto law 58 Stewart, James — views on banking 571 Suffrage- dignity and responsibility of ii. 12 principle of its allowance ii. 16 question of female suffrage, how regarded ii. 16 basis and regulation of ii. 18 basis of in, United States ii. (Note A.) 567 not a right , 76 SuUy— account of meeting between Elizabeth and Henry to con- sider European confederacy 300 Sydney- cited .t. . . 71 System- must be simple 211 INDEX. 621 Swiss Cantons — page character of 291 Taotius— cited , 70 account of German Pagi 295 Taxation — by whom made. , ii. 42 how regarded ii. 42 only by consent ii. 519 representation necessary to consent ii. 519 Tea Party— at Boston ii. 550 a number of persons unknown ii. 550 Tenure— in United States ii. 497 distinction between feudal and allodial ii. 499 Tiberius, Coruncanius— a professor of law 28 Toleration (see Religion) — credit due Locke 4 first example in America by Calvert 4 Treason- uncertainty of, under English law ii. 413 fraudulent voting, a species of ii. 15 the statute of treasons in American law, new ideas of. . .ii. 413 Treaties- defined 155 States cannot make 155 nations should observe 156 Carthaginian disregard of 157 king makes for subjects 174 binding on citizens, judges, and jurors 341 should be published 341 part of the supreme law 341 Trial by Evidenee— a jury trial is ii. 163 Trial by Jury (see Jury)— a trial by evidence 477 Trusts- jurisdiction of law courts over ii. 134 Twelve Tables, The — 433 Unconstitutional Law — may be disobeyed 189 622 INDEX- Uuconstitutional Law — Continued. page judiciary should declare void ^ 189 United States- laws address individuals , 8 divisions 43 departments of government 44 constitution, principles diflferent from English 14 a confederate republic 309 excelled Lycian government ■ 389 their right upon Declaration of Independence 307 no classes or orders 393, 398 grand field for jurisprudence 374 constitution compared with English , .383, 418 first example of peaceful change of constitution , 530 has inherent power over national objects ultra vires States 558 character of government 536 census ii. 33 ratio of representatives ii. 33 TTses — introduction of 137 UtiUty 118 Varus — teaches Boman law in Saxony ii. 183 Vattel— quoted on sovereignty 73 commends extradition 333 Verdict- jury right to return special ii. 313 special may find all facts ii. 316 unanimity in civil cases ii. 188 what it is ii, 194 meaning of unanimous ii. 185 necessity for ii. 186 Vested Eights- inviolable 567 Veto ii. 54 in United States and England 405 Voltaire- no credit due for language of declaration .ii. 507 Voters — all freemen in Pennsylvania ii. 18 male inhabitants '. . . , .ii. 18 qualifications in original States ii. 18, S3 not sovereign 76 ; ii, (Note A.) INDEX. 623 Voting— PACE importance of 9 fraudulent, punished with death at Athens ii. 15 fraudulent, a species of treason ii. ig Vixginia— declare, English customs to be law 466 War- after Norman Conquest king had power to declare ii. 57 Congress power to declare ii. 57 Wittenagemote had this power ii. 57 Washington, George- attended first lecture , 6 Wilson- zeal concerning education 29 Witness (see Evidence). Wittenagemote— regular periods of convening ii. 36 power to declare war ii. 57 as a court ii. 81 Wolflus, Baron de- views of sovereignty 71 Woman- seven ages of ii. 23 Women — should understand law and government 29, 33 dignity of 34 Wounding— pritna facial innocent ii. 392 Writ of Error— none lay from American colonies to English courts ii. 529 Wrongs — every wrong should have a remedy ii. 360 was observed under Saxon laws ii. 861 not fulfilled under common law .ii. 860, 861 Yelverton— how anciently regarded ii. 42 KP 213 wrk A56 II Author --. - ^ Vol. Wilson, James Title Copy The Works of James Wilson Date Borrower's Name