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Introductory Lecture, delivered in the Chapel of Morrison College, on the 7th of Novemer, 1835
LEXINGTON, NOVEMBER 9th, 1835.
DEAR SIR: We have been deputed by the LAW CLASS of Transylvania University, to express to you the high gratification they received from the delivery of your Introductory Discourse; and, to request, that you would favor them, with a copy for publication.
We take pleasure in performing the duty assigned us, and are,
C. M. CLAY,
B. E. GRAY,
W. M. TUNSTALL,
J. B. HOUSTON.
HON. GEORGE ROBERTSON, Professor of Law, T. U.
LEXINGTON, NOVEMBER 10th, 1835.
GENTLEMEN: In answer to your polite note of yesterday, requesting a copy of my late Introductory Lecture, for publication, I tender to yourselves, and to the Law Class whom you represent, my acknowledgements for your and their kind consideration, and freely present you with a copy of the address.
With sentiments of high respect and sincere friendship,
I am, Gentlemen, yours respectfully, GEORGE ROBERTSON, Messrs. TOMPKINS, CLAY, TUNSTALL, BUCKNER, COCKE and HOUSTON.
GENERAL expectation, as well as established Universal law, thus comprehending so many usage, demands, at this professional anniver- interesting departments of knowledge, each sary, a public address introductory to the di- depending on natural fitness and eternal prindactic course of legal instruction in which we ciples of reason and of right, must be admitare about to engage. The pressure, until now, ted to be, not only a perfect, but a beautiful of other and more important public duties has and voluminous science, which vitally concerns left us leisure scarcely sufficient for some gen-all things and all men, under all circumstaneral and discursive suggestions respecting the ces, and throughout all time. It is, in the character and elements of Law, as a science- only perfect sense, the supreme law, which a subject which, in its most graceful and at- cannot be universally obeyed without univertractive form, would be comparatively dry and sal harmony and peace, or violated, in any uninteresting to a miscellaneous auditory. possible instance, without consequent disorder and punishment. It is the immovable foundation of all human obligation and of all human power; and an enlightened contemplation of it in its outline or in any of its branches, however minute, tends to elevate and ennoble the character of man, and must improve and
Therefore, in attempting the discharge of this preliminary duty, we respectfully invoke your patience and indulgence.
Among human sciences, Jurisprudence is first in utility, first in variety and extent of knowledge, and should therefore be first in dignity and in public estimation. But neverthe-exalt the mind. less, vulgar prejudice, arising from ignorance But of a system so infinite and so sublime, of its true nature and extent prevailing among a more particular analysis would be now inaptoo many of the select class whose lives have propriate. We will only add that univerbeen ostensibly dedicated to it as a branch of sal law is either a fixed and controling principrofessional learning, has doomed it to an un-ple of being, or an inflexible rule of action just degradation in public opinion. When emanating from the CREATOR of all things, and considered philosophically, it is not, as it has binding the universe to the Throne of Heaven. been too often deemed to be, a circumscribed art Positive law is an artificial system of rules or trade, altogether practical and arbitrary, resulting from, and peculiar to the social and but is a vast department of knowledge, pre- civil state of man, prescribed by human legeminent in value, illimitable in extent, and islation for regulating civil conduct, and eninfinite in detail-embracing, as far as it is forcing civil obligations. These laws, mutable visible, in its luminous outline, the elements various and comparatively imperfect, but inof all human science-the concentrated wis-dispensable to the happiness and dignity of dom of ages-and the immutable principles of our species, constitute the elements of civil natural fitness and enlightened reason. jurisprudence. And it is in this restricted Jurisprudence is, as we know, generally de-sense that the term jurisprudence is profesfined to be "the science of Law." Laws, according to Montesque, are but the necessary relations of things. And, thus comprehensively uuderstood, law governs every thing in the physical and moral universe; and is divisible into two great orders-natural and pos-alone itive or universal and civil. Natural law is immutable in its nature, and universal in its authority and operation; and is either physical or moral.
sionally used and generally understood. And, though universal jurisprudence is, as it has been defined-"the knowledge of things human and divine, the science of what is just and unjust"-the latter branch of the definition designates the science which engages the peculiar attention of the legislator and jurist. This may be appropriately termed civil jurisprudence, because it regards man in the civil state, and regulates political and civPhysical law governs the material worldil relations. This department of jurisprudence and all animal existence; and is sub-divided may be sub-divided into general and particuinto various subordinate departments--such lar, rational and arbitrary. General law is as Chemistry, Mechanical Philosophy, Geol- that civil code which has been recognized by ogy, Anatomy, Phisiology, Botany. &c., &c. all civilized communities of men, and is found. Moral law is the system of rules prescribeded on the principles of universal reason and by God, for the conduct of rational beings in a right.
state of nature, or independently of civil rela- Particular or local law is the system of pos tions aud obligations, and is of two classes-itive enactments, which are peculiar to one Theology, or the relations and duties of manplace or people. The body of the laws of every to his Creator-and Ethics, or the natural re enlightened age or nation, are rational, or delations and obligations of man to his kind. ducable from reason and analogy. This is
Rational law prevails, to some extent, among all civilized men, and is the same every where. And hence among nations, differing in climate and in language, the same general rules of individual right and relative justice may generally be found to prevail.
science; profound and exalted science. Laws which alone can preserve order or tranquility, merely arbitrary and local are comparatively or ensure justice, peace or security. And here rare and unimportant. we may, at once, perceive the nature of the obligation of human laws-the importance of wise and just legislation-and the beneficence of a stable, authoritative and enlightened administration of positive law. Human legislation, always imperfect, must correspond with the character of the legislature. In legislation, A thorough knowledge of civil jurisprudence as well as in physics and in morals, the cause pre-supposes a general knowledge of the prin- will produce its kindred effect; and, as light ciples of justice, and of social and political cannot spring from darkness or virtue from organization, as well as an acquaintance with vice, so neither can wise and salutary laws be the history and laws of nations, and the local the offspring of legislative ignorance, selfishlaws of our own country; and requires a mind ness, or passion. Just and rational legislation of peculiar power, enlightened by general sci- is the rare fruit of prevailing virtue and intelence, and invigorated by severe and systematic ligence. But, in every civilized community, study; and consequently, it must be a science the occasional aberrations and capriciousness of a high order. This may be demonstrated of the legislative will, almost invariably yield, by a very slight attention to the nature of law. in time, to the salutary wisdom of experience, And our chief purpose in this initiatory ad- and to the settled predominance of principle. dress is, to improve this interesting occasion by The enactment and enforcement of law rean imperfect analysis of the elements and ob- quire the exercise of the three primordial fune jects of positive law, and by some incidental tions of sovereignty-the legislative-the jureflections on our own peculiar institutions. diciary-and the executive; and the depositoSociety is the natural state of man. This is ry of these powers possesses inherently, in a proved by his history in every age, aud coun- relative sense, incontrolable authority; and try, and clime; and may also be demonstrated hence all law is, in the same sense, paramount by considering, in a rational and philosophical and obligatory as long as it exists. Just comes spirit, his physical and moral adaptations-his from jubere, to command: and right is rectum capacities-his sympathies-his corporeal im- in Latin, the past participle of regere. Thus, becility and helplessness-his great improva- in a legal sense, one person's right is that bility and potential pre-eminence-his faculty which all other persons are ordered or comof speech-his destiny. Societies cannot exist manded by law to let him have and enjoy. In without conventional organization and laws; legitimate governments, all human laws are nor be happy or prosperous, unless those laws enacted by the people, or with their tacit or prebe just and effectual. As all men are by nature sumed authority and consent, and, operating entitled to equal personal rights, and as the as they do, personally, the legislative authority, greatest attainable good of the greatest number wherever it may be deposited, or however it is the ultimate object of political association, may be limited, must be superior to the will or the will of a majority possesses an inherent authority, or power, of any member of the body and natural authority, as a law for all, and politic; and is, therefore, in this sense, suwhich therefore, each constituent member must preme. But it is not necessarily the supreme be presumed to have agreed, by the act of be- power of the State; and is certainly not so in coming a member, not only to obey, but to aid the North American states, whose written funin enforcing and upholding, if it be consistent damental laws limit the legislative authority with the fundamental principles of their civil-distribute the functions of government into organization. As every civil community must three separate and co-ordinate departments, have a common will and a corporate existence each independent of the others, and reserve to and power, each individual member must have the people ultimate supremacy. In England surrendered, by necessary implication, as much there is no fundamental law that which is of his natural liberty as may be necessary for called the British Constitution, is nothing but giving sufficient authority and effect to the ag- a set of statutes and principles of unwritten gregate will, to be expressed and enforced ac- law, which have the authority of legislative cording to the terms and ends of their associ-prescription, and have been, in some degree, ation into one body politic. And consequent ly, as human society and human government are indispensable to the personal security and dignity of every individual of the human race, all positive laws, authoritively enacted and consisting with the principles of universal law, possess a supreme sanction as effectual and as obligatory as the security and welfare But here our constitution and fundamental of the aggregate body and of every constituent laws are declared to be supreme: and therefore, member can make it. It is the interest, and as the judiciary must, in the administration of therefore, the duty of every citizen to acknowl- the laws, decide what the law of each case is, edge the authority and maintain the efficacy it must necessarily disregard, as a nullity, any and dignity of the laws of his country; for it legislative enactment in violation of the conis the supremacy and inviolability of law, stitution of the supreme law. No such in
consecrated, in the popular feeling and judg ment, by age, and national associations, and ancient reminiscences. Hence, in England, Parliament is said to be omnipotent, and none of its enactments can, in a practical and effectual sense, be deemed unconstitutional, are therefore void.
terdicted enactment can here be considered be amendable to the judgment and control of law. But, in a political sense, the judiciary any other nation, and is, of course, under no of America is not superior to the legislature other obligation than that of conscience, which -nor the legislature to the judiciary; each, in requires perfect justice among nations as well its appropriate sphere, is the sole representa- as among men. And hence the internal law tive or agent of the common and only sovereign of nations has arisen. The external law, or -the constituent body, or the people. law of perfect obligation, requires no further explanation or definition than that which the term itself imports.
Positive law is divisible into a three-fold classification-national, organic and municipal; respecting each of which we will now proceed to take a general notice-a mere coup ael view of their character and elements, as understood according to American principles and doctrines.
The natural law of nations is necessarily immutable and universal, and can be understood only by applying the principles of ethical jurisprudence to nations as far as, in the nature of things, they are reasonably applicaSeparate and independent communities are ble. The fundamental principle of ethics is the natural offsprings of diversities of climate that human happiness, temporal and eternal, --of topography-of moral character-of lan- is the ultimate end of human existence, and guage and of the vastness of the territory should be the object of all human action and and population of the earth, separated by pursuit. The same principle is the true test physical and moral barriers. of the necessary law of nations; and consequently, it is the duty, as well as the interest of nations, to observe justice and to cultivate peace and friendly intercourse among each other, and to do to each other all the good they can, consistently with their own safety and welfare. This was understood by the wise and good even in the age of Xenophon, who, in his Cyropedia, suggests a sufficient reason for it; and that is, that no nation can reasonably expect to receive from another that which it will not reciprocate, or, in other words, more justice and beneficence than it practices towards others.
As a nation or state is but an aggregation of natural persons associated into one body politic for social and civil purposes of mutual improvement, security and happiness-bound together by some fundamental compact, express or implied, and governed and protected by the same law and the same power; each independent nation or state, though composed of a multitude of natural persons is politically and relatively to all other nations or states an unit, possessed of legal and moral individuality; and is, though an artificial, yet a moral being. Having a corporate power and will, the different nations of the earth are, as between each The positive or arbitrary law of nations is other, like so many natural persons, living in-composed-1st. of customs and usages which dependently in a state of nature; and conse- have been established by tacit recognition, and quently, as the laws of nature, though modifi- are denominated "the customary law of naed by the social state, cannot be altogether tions; and 2d. of compacts and treaties, called abrogated, each nation has its peculiar natural "the conventional law of nations."' rights and obligations, and must be the subject of a moral law, possessing an inherent obligation paramount to that of any civil or human authority; and of course, also, there must be among nations some code of international law for regulating their intercourse and their reciprocal rights and obligations. This is what is called the law of nations"-which is divided into the natural and the positive law of nations. The natural law of nations is divided into two branches-the internal, or that which is binding in conscience only, and therefore imposes but an imperfect obligation; and the external, or that which creates a perfect obligation, which may be enforced by an appeal to arms, the ultima ratio regis. As a natural law must be adapted to the subject of its ap. plication, and as a nation is not precisely and the other private The public law is that in all respects like a natural person, the natu- which regulates commercial, social, and diral law of natural persons is only so far the plomatic intercourse between nations, and law of nations as it is suitable to their defines their rights and their duties, as bepeculiar and essential character and rights. tween each other, in war and in peace, and the A nation has a right to do whatever may be extent of their power and jurisdiction. The necessary to preserve its independent existence, private law is a law of comity, regulating the and to promote the legitimate ends of that ex-extent to which the laws of one pation may istence; and an independent nation must, operate on persons or things within the jurisfrom the necessity of the case, be the sole diction of another nation. The domestic laws judge, in most instances, of the proper of the various nations of the earth, for regulameans of effectuating those ends. A nation, ting contracts, and succession and personal when it has the right to judge for itself, cannot rights, and the modes of acquiring, and of
The positive law, depending, as it does, on consent, is liable to change. But it is the most extensive and practical branch of national law, and must be learned in the civil and diplomatic history of civilized nations, who, in modern times, and especially wherever the christian religion has shed its meliorating influence, have reduced international jurisprudence to something like a regular and harmonious system, founded on the stable and universal principles of natural justice and enlightened policy. This code of laws, thus but recently inatured and systematically practiced among christian nations, and to the recognition and prevalence of which, the maxims and usages of our Republic have essentially contributed, is divisable into two classes-the one public
holding and of suing for property, differ in a greater or less degree from each other.
nation presupposes an organic system of laws, brought into being by the consent, express or The laws of one state cannot, proprio vigore, implied, of the whole mass, or by the predomhave an extra-territorial operation. Each na-inant power of the few over the many, and detion has an exclusive right to legislate for pendent, for their character and efficacy, on itself, and to enforce its own laws within its the moral and physical condition of the conown jurisdiction. But the interests of social and commercial intercourse require some relaxation of this fundamental principle of legislation and of sovereignty, an inflexible and universal adherence to which would, to a great extent, prevent that kind of personal and commercial intercommunication, which is most conducive to the mutual harmony, prosperity and happiness of states. A contract is made in one state, and its enforcement is sought in another state. At to the effect of the contract or the capacity of the parties, the laws of the two States are in conflict- shall the lex loci contractus or the lex fori prevail? A right to property is claimed to have been acquired within the jurisdiction and according to the laws of one nation, and the property is within the jurisdiction of another nation-shall the lex domicilii or the lex loci rei scitae govern?
stituent body. The philosophy of human nature teaches the philosophy of government and of legislation; and history proves that the prevailing character of the people has ever been, and will ever continue to be, everywhere and in all time, the prototype of their government and laws. The organic laws of every nation, not only should be, but will be adapted to the character and condition of the people. And from this political axiom, the inefficacy and abortiveness of all abstract systems of political organization, and of all speculative codes of law, might have been inferred without the aid of historic testimony. The excellence of government or of laws is altogether relative; such as may be the best for one people, may be the worst for another. In practical politics and legislation, abstract perfection is unattainable. Men acting upon men must act imperfectly. The safety and happiness of the people are the ends of all just human laws. These ends may be approximated only by the appropriate means, which are as various as the diversified circumstances and character of mankind. Hence there is no political panacea; and he who recommends such a nostrum, is a quack, whose charlatanism is less excusable, because it may be more pernicious, than that of Paracelsus or Sangrado. There is no such thing as abstract optimism in government or in law. That only is best which is most suitable to those for whom it is intended-and none is good, whatever may be its speculative excellence, which is inadaptable to the genius and habitudes of the people. Plato's Republic, and Harrington's Oceana, and Moore's Eutopia are but a few of the many monuments which speculative philosophers and scholastic legislators have built up, and common sense has pulled down in attestation of these simple and practical truths.
Among an almost infinite variety of cases, in which there may be a vexatious conflict of laws in regard to persons and to things, these two alone may be sufficient to illustrate the importance of that courtesy jamong the more enlightened nations of this age, which permits the law of one, in certain cases and to a certain extent, to prevail and be enforced within the jurisdiction and by the courts of another; and, as this is a concession partly ex comitate, the system of rules resulting from it is called the law of comity among nations, or the jus privatum gentium. The mutual interests of nations constitute the true principle of this law, and the rule deduced from this principle is, that it is the duty of each nation to permit foreign laws to operate within its limits, except so far as its own essential rights or interests, or the just rights or proper duties of its own citizens may be thereby surrendered or jeoparded. It is not, therefore, altogether arbitrary; in its nature it is a law of reason and of justice; but its recognition and enforcement In the nature of things, civil laws, being morbeing voluntary and apparently ex gratia, it is al rules for the government of moral subjects, therefore denominated a law of comity. And, must, to be durable or efficacious, be modified though the extension of commerce and its according to the characteristic principles of train of enlightening and liberalizing agencies the majority of the people, for whom they are have given birth and maturity, and no small enacted. And, as every body politic must degree of general prevalence and authority, to have a single will, which, however expressed, this important branch of international law, is the actual government, the nature and the within the last half century, still it depends form of the government will, of course, depend so essentially on plain and fixed principles, as on the intelligence and virtue of the individual to be generally understood and applied by members of the corporate body. A people enreason and analogy, without great difficulty or doubt; and, surely, constituted as these con-themselves; those who are not so, never can, lightened and virtuous will always govern federated States are, no branch of jurispru- but will be governed by the superior intellidence is, to the extent of its application, more interesting or useful to the statesmen, and ju-gence, craft or force of a few men, or of a sinrists, and citizens of our complicated Union. gle man. Here it is peculiarly important; and the har mony and best interests of these States require that it should be rightly understood and scrupulously regarded.
But the existence of an independent state or
Whether a democracy, pure or representative, a republic, an aristocracy. monarchy, oli garchy, or anarchy, shall actually prevail, will depend on the moral character of the people. But the form of government does not al