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American Political Writing During the Founding Era: 1760-1805, ed. Charles S. Hyneman and Donald Lutz (Indianapolis: Liberty Fund, 1983). 2 vols. Volume 2.
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James Wilson 1742-1798
On Municipal Law
Born in Scotland in 1742, James Wilson came to America in 1766; was a member of the Pennsylvania convention in 1775, as well as the Continental Congress; one of the most influential members of the Constitutional Convention in 1787; and an associate justice of the United States Supreme Court when he died, in 1798. For a man of such brilliance (he was the first professor of law at the College of Philadelphia—later the University of Pennsylvania), and such importance to our founding, Wilson is little known by the general public and little read by academics. One of the most ardent advocates of popular sovereignty throughout his life, although generally known as a conservative, Wilson here argues a strong case for the doctrine of government based upon consent. This doctrine was implicit in American political theory for over a century and a half by the time he wrote, but few attempted to proceed analytically on the subject as Wilson does here. In 1804 Bird Wilson directed the publication of The Works of James Wilson by Lorenzo Press. Its contents were a comprehensive and detailed discussion of politics. Only Chapter V of the more-than-850-page volume is reproduced here, as it is the most representative of his life’s work and the best discussion of consent by an American during the era. This particular piece was originally published some ten years before being published in the volume of collected works. The 1804 version is used here.
OF MUNICIPAL LAW
I now proceed to the consideration of municipal law—that rule, by which a state or nation is governed. It is thus defined by the learned Author of the Commentaries on the Laws of England. “A rule of civil conduct, prescribed by the supreme power of the state, commanding what is right and prohibiting what is wrong.”a In my observations upon Sir William Blackstone’s definition of law in general, I did him the justice to mention, that he was not the first, and that he has not been the last, who has defined law upon the same principles, or upon principles similar, and equally dangerous. Here it is my duty to mention, and, in one respect, I am happy in mentioning, that he was the first, though, I must add, he has not been the last, who has defined municipal law, as applied to the law of England, upon principles, to which I must beg leave to assign the epithets, dangerous and unsound. It is of high import to the liberties of the United States, that the seeds of despotism be not permitted to lurk at the roots of our municipal law. If they shall be suffered to remain there, they will, at some period or another, spring up and produce abundance of pestiferous fruit. Let us, therefore, examine, fully and minutely, the extent, the grounds, the derivation, and the consequences of the abovementioned definition.
“Legislature,” we are told, “is the greatest act of superiority, that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are, indeed, convertible terms; one cannot subsist without the other.”b “There must be in every government, however it began, or by whatsover right it subsists, a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty reside.” “By sovereign power is meant the making of laws; for wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration, by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end.”c “In the British parliament, is lodged the sovereignty of the British constitution.”d “The power of making laws constitutes the supreme authority.”e “In the British parliament,” therefore, which is the legislative power, “the supreme and absolute authority of the state is vested.”f “This is the place, where that absolute despotick power, which must, in all governments, reside somewhere, is intrusted by the constitution of these kingdoms.” “Its power and jurisdiction is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.”g “It can change and create afresh even the constitution of the kingdom and of parliaments themselves. It can, in short, do every thing that is not naturally impossible.” “What the parliament doth, no authority upon earth can undo.”h “So long as the English constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control.”i “Hence the known apothegm of the great Lord Treasurer Burleigh, that England could never be ruined but by a parliament.”j
It is obvious, that though this definition of municipal law, and this account of legislative authority be applied particularly to the law of England and the legislature of Great Britain; yet they are, in their terms and in their meaning, extended to every other state or nation whatever—“to every government, however it began, or by whatever right it subsists.” Indeed, the opinion of Mr. Locke and other writers, “that there remains still inherent in the people a supreme power to remove and alter the legislature,” is considered to be so merely theoretical, that “we cannot adopt it nor argue from it, under any dispensation of government at present actually existing.”k
The doctrines contained in the foregiong quotations from the Commentaries on the laws of England, may be comprised under the two general propositions, which follow. 1. That in every state, there is and must be a supreme, irresistible, absolute, uncontrolled authority, in which the rights of sovereignty reside. 2. That this authority, and these rights of sovereignty must reside in the legislature; because “sovereignty and legislature are convertible terms,” and because “it is requisite to the very essence of a law, that it be made by the supreme power.” In the first general proposition, I have the pleasure of agreeing entirely with Sir William Blackstone. Its truth rests on this broad and fundamental principle—that, by the constitutions of nature, men and nations are equal and free. In the second general proposition, I am under the necessity of differing altogether from the learned Author of the Commentaries. I differ from him, not only in the opinion, that the foregoing chain of reasoning must be applicable to every government and to every system of municipal law; I differ from him likewise in the opinion, that the foregoing chain of reasoning can be justly applied even to the government of Great Britain and to the municipal law of England. I think I can safely pledge myself to show, that, in both, I differ from him on the most solid and satisfactory ground.
It deserves to be remarked, that, for his definition of municipal law, he cites the authority of no English court, nor of any English preceding writer, lawyer, or judge. Indeed, so far as I know, he could cite no such authority. So far as I have examined the English law books and authorities, upon this important subject—and I have examined them, as it has been my duty to do, with no small degree of attention—this definition stands entirely unsupported in point of authority. I may, however, be mistaken—I pretend not to have read, far less to remember, every thing in the law. If I am mistaken, I will thank the friendly monitor, that will advise me of the mistake. As at present advised, I can say, that, so far as I know, this definition is unsupported by authority in the English law. I shall hereafter have occasion to show that, concerning acts of parliament, to which the definition is particularly applied, our law authorities hold, and even parliament itself holds, a very different language.
The introduction of the principle of superiority into the definition of law in general, we traced, when we examined that subject, from Sir William Blackstone to Baron Puffendorff. The introduction of the same principle into the definition of municipal law, can be traced to the same source. “Human laws,” says he, “are nothing else, but the decrees of the supreme power, concerning matters to be observed by the subjects.”l The celebrated Heineccius, in his system of Universal Law, gives a definition much to the same purpose—“Civil laws,” says he, “are the commands of the supreme power in a state.”m Why was this principle transplanted into the law of England?
It deserves to be further remarked, that, for all the strong sentiments and expressions concerning the necessary connexion, and indeed the convertibility of the sovereign and the legislative powers, no authority is produced from the English law; and—I speak under the guard as before—so far as I know, none could be produced, except in one instance, of which I shall soon take notice. The observation, which I have already made with regard to the definition of municipal law, may, therefore, be applied, with equal propriety, to the necessary connexion between the sovereign and the legislative powers. This connexion is not attempted to be supported by authority in the English law. I excepted one instance. It is this—“The power and jurisdiction of parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.”n For this, the authority of my Lord Coke in his fourth Institute is quoted. I have examined the passage. It stands thus. “Of the power and jurisdiction of the parliament, for making of laws in proceeding by bill, it is so transcendent and absolute, as it cannot be confined, either for causes or persons, within any bounds.”o From this authority, I think it may be fairly and justly inferred—that, by the British constitution, the legislative authority of that nation is, without any exception of causes or persons, vested in the British parliament. In the same manner, by the constitution of Pennsylvania, the legislative power of this commonwealth is vested in a general assembly. But can it be inferred from this authority, that the sovereign power of Great Britain is vested in her parliament? Can it be inferred from the constitution of Pennsylvania, that her sovereign power is vested in her general assembly? I think, therefore, I may now venture to say, that both in his definition of municipal law, and in his opinion concerning the convertibility of the legislative and the sovereign authority, Sir William Blackstone stands unsupported by authority. Is he supported by reason and by principle? By neither, in my humble opinion.
The discussion of this question necessarily leads me to consider the establishment of government, and the division of its powers. That this subject may be fully understood,—for, in the United States, it ought to be understood fully—I shall examine the sentiments, which have been generally entertained and received concerning it, and then compare those sentiments with what I consider as the true state of things. No sooner is government mentioned, than the fine flattering images of power, dominion, and sovereignty dance in the fancy, and the beautiful and magnificent effects of its establishment. But the truth is, that sovereignty, dominion, and power are the parents, not the offspring of government. Let us, however, see what has been thought, and what ought to be thought, concerning those splendid objects.
The theory of the establishment of government has been generally such as I am about to explain.
It has been supposed, that, if a multitude of people, who had formerly lived independent of each other, wished to unite in a political society, and to establish a government, they would find it necessary to take the following steps. 1. Each individual would engage with all the others to join in one body, and to manage, with their joint powers and wills, whatever should regard their common preservation, security, and happiness. In consideration of this engagement, made by each individual with all the others, all those others would engage with each individual to protect and defend him from injury, and to secure him in the prosecution of every just and laudable pursuit. These reciprocal engagements from each individual to all the others, and from all the others to each individual form the political association. Those who do not enter into them are not considered as a part of the society.
The society being formed, some measures must be taken in order to regulate its operations; otherwise it could never adopt or pursue a system of measures for promoting, jointly and effectually, the publick security and happiness. These measures involve the formation of government.
A third step, we are told, must also be taken, before government can be completed. In addition to the engagement of political association, another engagement must be made: to that engagement, there must be a new party. What he is—whence he comes—from what source his equal and independent powers of contracting originate, have never, to this moment, been explained. Such an account of him as I have received, I will give: if it is not satisfactory, you must not blame me. “This party is one or more persons, on whom the supreme authority is conferred,” says one.p By another, we are told, that this party is one or more persons, on whom “the sovereignty is conferred.”q The sovereignty of supreme authority! How has it started up all of a sudden? Why does it make its first appearance in a derivative state? Where do we find it originally?—for it must exist originally before it can be conferred. To these questions we receive no explicit answer. We are told at one time, that “there are, in each individual, the seeds, as it were, of the supreme power.”r We are told, more cautiously, at another time, that the voluntary consent and subjection of the respective members of the society, is the “nearest and immediate cause, from which sovereign authority, as a moral quality, results.”s But, to make the most of these different pieces of information, let us suppose that this cause will produce its proper effects; that these seeds will yield, in due time, their natural fruits; and that this conferred sovereignty existed originally in those who conferred it. What is this sovereignty? Is it divisible or indivisible? Was the whole or only a part of it conferred? Was it conferred unconditionally, or upon certain conditions? Was it conferred gratuitously, or for a valuable consideration? Why hear we nothing concerning these important steps, which, upon the opinion generally received, must have been taken previously to the complete formation of a government? This, I confess, is far from being satisfactory: let us, however, take it as it is; and proceed to the remaining step, which, we are told, is taken for the complete establishment of government. This is an engagement by those, who are to be the future governours, that they will consult most carefully and act most honestly for the common security and happiness; and a reciprocal engagement by those, who are, in future, to be governed, that they will observe fidelity and allegiance to those invested with the sovereign authority.
It is admitted not to be probable, that, in the formation of the several governments, these three steps have been actually and regularly taken; yet, we are told, in every just institution of power, there must have been such transactions as implicitly contain the full force and import of all of them.t
That the two first steps have been sometimes taken, and must be always supposed, in the regular structure of a government, I readily agree; because it is not easy to discover how a government could be formed without them. But with regard to the third, I see no necessity for it: I see no propriety in it: it is derogatory, in my humble judgment, from the genuine principles of legitimate sovereignty, and inconsistent with the best theory, and the best exercise too, of supreme power. But the full illustration of these dignified subjects is reserved for another place.
With regard, however, to the British constitution, we must allow the supposition, that a contract took place at its establishment. For this we have high political authority. A full assembly of the lords and commons, met in convention in the year 1688, declared that James the second had broke the original contract between the king and people.u What the terms of that contract were, at what time it was made, and what duties it enjoined, have been subjects of dark and doubtful disputation. For this reason, as we are told by Sir William Blackstone, it was, after the revolution, judged proper to declare these duties expressly, and to reduce that contract to a plain certainty. So that, whatever doubts might be formerly raised, by weak and scrupulous minds, about the existence of such an original contract, they must now entirely cease; especially with regard to every prince, who has reigned since that revolution.v
But, after all, what will this prove with regard to the supreme power of parliament? Do we hear, in the British constitution, of any contract between them and the people? How came they to be invested with such immense authority? The usual theories of government support no hypothesis of this kind, even in favour of the British legislature; far less, in favour of the legislature of every other government, “however formed, or by whatever right subsisting.”
Let us trace this matter a little farther: let us endeavour to form some just conceptions concerning this supreme and sovereign power, concerning which so much has been said, and concerning which so little has been said justly. Let us turn our eyes, for a while, from books and systems: let us fix them upon men and things. While those, who were about to form a society, continued separate and independent men, they possessed separate and independent powers and rights. When the society was formed, it possessed jointly all the previously separate and independent powers and rights of the individuals who formed it, and all the other powers and rights, which result from the social union. The aggregate of these powers and these rights composes the sovereignty of the society or nation. In the society or nation this sovereignty originally exists. For whose benefit does it exist? For the benefit of the society or nation. Is it necessary for the benefit of the society or nation, that, the moment it exists, it should be transferred?—This question ought, undoubtedly, to be seriously considered, and, on the most solid grounds, to be resolved in the affirmative, before the transfer is made. Has this ever been done? Has it ever been evinced, by unanswerable arguments, that it is necessary to the benefit of a society to transfer all those rights and powers, and the results of all those rights and powers, which the members once possessed separately, but which the society now possess jointly? I think such a position has never been evinced to be true. Those powers and rights were, I think, collected to be exercised and enjoyed, not to be alienated and lost. All these powers and rights, indeed, cannot, in a numerous and extended society, be exercised personally; but they may be exercised by representation. One of those powers and rights is to make laws for the government of the nation. This power and right may be delegated for a certain period, on certain conditions, under certain limitations, and to a certain number of persons. I ask—Is it necessary that, along with this power and this right, all the other powers and rights of the nation should be delegated to the same persons? I ask farther—is it necessary, that all those other powers and rights should be delegated without any right of resumption?—Another of those powers and rights is that of carrying the laws into execution. May not the society delegate this right for another period, on other conditions, with other limitations, and to other persons? A third right and power of the society is that of administering justice under the laws. May not this right be delegated for still another period, on still other conditions, under still other limitations, and to still other persons? Or may not this power and right be partly delegated and partly retained in personal exercise? For, in the most extended communities, an important part of the administration of justice may be discharged by the people themselves. All this certainly may be done. All this certainly has been done, as I shall have the pleasure of showing, when I come to examine the American 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 reservation, the distribution, the arrangement, the direction, and the uses of publick authority, of which even the just theory is still unknown in other nations.
Let us now pause and reflect. After what we see can be done, after what we see has been done, in the delegation and distribution of the rights and powers of society; can we subscribe to the doctrine of the Commentaries—that the authority, which is legislative must be supreme? Can we consent, that this doctrine should form a first principle in our system of municipal law? Certainly not. This definition is not calculated for the meridian of the United States.
I go farther—It is not calculated for the meridian of Great Britain. In order to show this, as it ought to be shown, it will be necessary to enter into a disquisition concerning the component parts and powers of the British parliament, and the origin, kinds, and properties of the English municipal law; the greatest and best proportion of which was never made by a parliament at all.
The British parliament consists of three distinct branches; the king, the house of lords, and the house of commons. To that species of English law, which is called a statute, the assent of all the three branches is necessary. When it has received the assent of all the three, it becomes a law and is obligatory upon the nation; but it is obligatory upon different parts of it for different reasons. “An act of parliament,” says my Lord Hale, “is made, as it were, a tripartite indenture, between the king, the lords, and commons; for without the concurrent consent of all those three parts of the legislature, no such law is or can be made.”w What is an indenture? The Commentaries will tell us, that it is a species of deed, to which there are more parties than one.x What is the first requisite of a deed? The Commentaries will also tell us, “that there be persons able to contract, and be contracted with.”y If a deed is a contract or agreement; if an indenture is a species of deed, to which there are more parties than one; if an act of parliament may be called an indenture tripartite, because there are three parties to it—the king, the lords, and the commons; we find, that an act, which, considered indistinctly and dignified by the name of law, requires the whole supreme power of the nation to give it birth, is, when viewed more closely and analyzed into the component parts of its authority, properly arranged under the class of contracts. It is a contract to which there are three parties; those, who constitute one of the three parties, not acting even in publick characters. A peer represents no one; he votes for himself; and when he is absent, he may transfer his right of voting to another. This may be thought a very free way of treating what is represented as necessarily an emanation of sovereign authority; but it is treating it truly; and give me leave to add, it is treating it accurately. Besides; I shall not be ashamed of treading in a path, though even a foot path, to which I am directed by the finger of the enlightened Lord Hale. That path, to which he points, will lead to instruction. Let us pursue it— To this indenture there are three parties: to an indenture the power of contracting in each of the parties is necessary. What is the power of contracting in the different parts? The king contracts for himself, and as representing the executive authority of the nation. The peers engage in their private and personal rights. The members of the house of commons bind themselves and those whom they represent. They represent, or are supposed—how justly is immaterial to our present argument—to represent “all the commons of the whole realm.”z We all know, that one may execute an instrument, either in person, or by an attorney: we all know that an instrument may be executed by a person in his own right and as attorney also. Perhaps it would not be improper if, on some occasions at least, the forms, as well as the principles, of private, were copied into publick, transactions. Permit me to mention an instance, in which this was lately done. In the ratification of the constitution of the United States by the convention of Pennsylvania, the distinct characters, in which the members of that convention acted, are distinctly marked. “We the delegates of the people of the commonwealth of Pennsylvania, in general convention assembled, do, in the name and by the authority of the same people, and for ourselves, assent to and ratify the foregoing constitution for the United States of America.”
The foregoing, though a very familiar, must, I think, be admitted to be a very intelligible and satisfactory illustration and analysis of the manner, in which acts of parliament are made and become obligatory. For my own part, I cannot conceive how the truth, or the real dignity of a subject, can suffer by being closely inspected. When the exclamation—procul este—is made, I am led to suspect, that a secret conscious want of dignity or integrity is the cause. The plain and simple analysis, which I have given, of the nature and obligation of acts of parliament is evidently countenanced by the expressive legal language of my Lord Hale—It is supported and confirmed by the very respectable authority of my Lord Hardwicke. “The binding force—” I use his very words, as they are reported—“the binding force of these acts of parliament arises from that prerogative, which is in the king, as our sovereign liege lord; from that personal right, which is inherent in the peers and lords of parliament to bind themselves and their heirs and successours in their honours and dignities; and from the delegated power vested in the commons, as the representatives of the people; and, therefore, Lord Coke says, 4. Inst. 1. these represent the whole commons of the realm, and are trusted for them. By reason of this representation, every man is said to be a party to, and the consent of every subject is involved in, an act of parliament.”a “Every man in England,” says the Author of the Commentaries himself, “is, in judgment of law, party to the making of an act of parliament, being present thereat by his representatives.”b What is there in all this, that necessarily implies the irresistible energy of power, which is sovereign and supreme, without limits and without control?
We have already seen all the parties to an act of parliament. Let us, again, take a deliberate and distinct view of them: where shall we find the sovereign and supreme power? In the king? It is true, that he is called by my Lord Hardwicke “sovereign liege lord,” and that his prerogative, as such, is assigned, and with much propriety, as one of the sources, from which “the binding force of acts of parliament arises.” The legal and constitutional import of the expressions, sovereign liege lord, is well known. They present the king to his subjects as the object of their allegiance: they present him to foreigners as exercising the whole authority of the nation in foreign transactions. To foreign transactions, the British parliament is no party: to foreign nations, the British parliament is totally unknown. Alliances, treaties of peace, even declarations of war, are made in the name, and by the constitutional authority, of the king alone. But, it has never been pretended, that the prerogative of the king, as sovereign liege lord, extended so far as to bind his subjects by his laws. Even Henry the eighth, tyrant as he was, knew that an act of parliament was necessary, if even that could be sufficient, to endow his proclamations with legal obligatory force. But the king, by assenting to an act of parliament, can bind himself; and he can bind all that portion of the sovereign power of the nation, which is intrusted to his management and care. And it is certainly proper, that, as he represents the executive and the foreign powers of the nation, he should be consulted in the making of the national laws. From this short and clear deduction, we evidently see, that the absolute, uncontrolled power, mentioned by Sir William Blackstone as inseparable from legislative authority, is not to be found in the king. Is it to be found in the house of lords? That will not be pretended. Their votes bind not a single person in the nation, except themselves and the heirs and successours of their honours and dignities. Let us go to the house of commons: is this supreme power, which elsewhere we have searched for in vain, to be found among the members of this house? In what character? In their own right? This will not be alleged. As representatives? As representatives, they act, not by their own power, but by the power of those whom they represent. This power, therefore, whatever it is, cannot be found among the members of the house of commons, it must be looked for among their constituents. There, indeed, we shall find it: and the moment we find it, we shall discover its nature and extent. The king and the commons assembled in parliament are invested by the whole nation, except the house of lords, who act in their own right, not with “transcendent and absolute power and jurisdiction” generally, as one would naturally conclude from the unqualified expressions of Sir William Blackstone; but with this “transcendent and absolute power and jurisdiction for the making of laws,” as we find in the determinate language of my Lord Coke. To the making of laws, this power and jurisdiction of the British parliament is strictly and rigidly confined. A single law the British parliament cannot execute: in a single cause, the British parliament cannot administer justice. Why then should “absolute depotick power,” to use the language of the Commentaries, be ascribed to the British parliament? Has this doctrine a solid foundation? I presume it has not. But though it has not a solid foundation, it has produced, as I shall hereafter show, the most pernicious effects. I will acknowledge freely, that the bounds, which circumscribe the authority of the British parliament, are not sufficiently accurate: I will acknowledge farther, that they are not sufficiently strong. But can this suggest a reason or a motive for denying their existence? It strongly suggests, indeed, reasons and motives of a very different kind. It suggests the strongest reasons and motives for circumscribing the authority of the British parliament by limits more accurate, for fortifying those limits with an additional degree of strength, and for rendering the practice more conformable than it now is, to the theory of its institution—for rendering the house of commons in fact, what it is presumed to be in law, “a representation of all the commons of the whole realm.” If any thing coming from this chair could be supposed, by possibility, to produce the smallest effect in that nation, I would warmly recommend to it the accomplishment of those great objects, as consummations most devoutly to be wished. The maxim of the great Lord Burleigh has prevailed long enough: let it make way for a better. Instead of saying, that “England can never be ruined but by a parliament;” let it be said, and truly said, that “England can never be ruined but by herself.”
The learned Author of the Commentaries distinguishes between a law and a counsel; and also between a law and an agreement. I will examine the principle of these distinctions, in order that its strength or weakness may appear. It will be necessary to mention what is said in the Commentaries upon this subject. “Municipal law is called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not, as we see proper, and to judge of the reasonableness or unreasonableness of the thing advised: whereas our obedience to the law depends not upon our approbation, but upon the maker’s will. Counsel is only matter of persuasion; law is matter of injunction: counsel acts only upon the willing; law upon the unwilling also.
“It is also called a rule, to distinguish it from a compact or agreement: for a compact is a promise proceeding from us; law is a command directed to us. The language of a compact is, ‘I will, or will not, do this;’ that of a law is, ‘thou shalt, or shalt not, do this.’ It is true, that there is an obligation, which a compact carries with it, equal, in point of conscience, to that of a law; but then the original of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act, without ourselves determining or promising any thing at all.”c
The examination of the principle, which lies at the root of these distinctions, is an interesting subject indeed. If these distinctions can be supported, we may bid a last adieu to the maxim which I have always deemed of prime importance in the science of government and human laws—a free people are governed by laws, of which they approve. Before we part from this darling position, let us, at least, cast behind us, a “longing, lingering look.”
Upon these passages in the Commentaries, I make remarks similar to those, which I made upon the passages examined some time ago. No authority in the English law is adduced—none, so far as I know, could be adduced to support them. These sentiments concerning law, as well as the definitions of municipal law, and law in general, may be traced to the performance of Baron Puffendorff. Let us see what this performance says. “Law differs from counsel in this, that by the latter a man”—“has no proper power, so as to lay any direct obligation on another; but must leave it to his pleasure and choice whether he will follow the counsel or not.” “But law, though it ought not to want its reasons, yet these reasons are not the cause why obedience is paid to it, but the power of the exacter, who, when he has signified his pleasure, lays an obligation on the subject to act in conformity to his decree.” “We obey laws, not principally on account of the matter of them, but upon account of the legislator’s will. And thus law is the injunction of him, who has a power over those, to whom he prescribes; but counsel comes from him, who has no such power.” “Counsel is only given to those, who are willing to have it; but law reaches the unwilling.”d
“Neither are those ancients accurate enough in their expressions, who frequently apply to laws the name of common agreements.” “The points of distinction between a compact or covenant and a law, are obvious. For a compact is a promise, but a law is a command. In compacts, the form of speaking is, I will do so and so; but in laws, the form runs, do thou so, after an imperative manner. In compacts, since they depend, as to their original, on our will, we first determine what is to be done, before we are obliged to do it; but in laws, which suppose the power of others over us, we are, in the first place, obliged to act, and afterwards the manner of acting is determined. And, therefore, he is not bound by a compact who did not freely tie himself by giving his consent: but we are, for this reason, obliged by a law; because we owed an antecedent obedience to its author.”e
You now see, that these distinctions between a law and an agreement, a law and a compact are adopted from Baron Puffendorff: whence he derived them, it is immaterial to inquire. But it is material to show, as I think I can do unanswerably, that these distinctions, if they could be supported, would overturn the beautiful temple of liberty from its very foundations. It is material also to show, as I think I can do unanswerably, that the fair temple of liberty stands unshaken and undefaced; and that the sole legitimate principle of obedience to human laws is human consent. This consent may be authenticated in different ways: in its different stages of existence, it may assume different names—approbation—ratification—experience: but in all its different shapes—under all its different appellations, it may easily be resolved into this proposition, simple, natural, and just—All human laws should be founded on the consent of those, who obey them. This great principle I shall, in the course of these lectures, have occasion to follow in a thousand agreeable directions. My present business, while I examine the principles of municipal law as delivered in the Commentaries, is to apply them and the examination of them to the law of England. In that law, we shall find the stream of authority running, from the most early periods, uniform and strong in the direction of the principle of consent—consent, given originally—consent, given in the form of ratification—and, what is most satisfactory of all, consent given after long, approved, and uninterrupted experience. This last, I think, is the principle of the common law. It is the most salutary principle of obedience to human laws, that ever was diffused among men. With such a Byzantium before him, is it not astonishing, indeed, that the attention—must I say the attachment?—of Sir William Blackstone should have been attracted towards a Chalcedon?f
The ancient coronation oath of the kings of England obliged them, to the utmost of their power, to cause those laws to be observed, “which the men of the people have made and chosen.”g
Let us next pay the respect, which is due to the celebrated sentiment of the English Justinian, Edward the first. “Lex justissima, ut quod omnes tangit, ab omnibus approbetur.” It is a most just law, that what affects all should be approved by all. This golden rule is, with great propriety, inserted in his summons to his parliament. The Lord Chancellor Fortescue, in his most excellent tractate concerning the English laws, informs his royal pupil, that the statutes of England are framed, not by the will of the prince, but by that and by the assent of the whole kingdom. “Angliæ, statuta, nedum principis voluntate, sed et totius regni assensu, ipsa conduntur.” And if a statute, though passed with the greatest caution and solemnity, should be found, on experience, not to reach those purposes, which were intended by its framers, it can soon be reformed; but not without the same assent of the peers and commonalty of the kingdom, from which it originally flowed. “Et si statuta hæc, tanta solennitate et prudentia edita, efficaciæ tantæ, quantæ conditorum cupiebat intentio, non esse contingant, correcto reformari ipsa possunt; et non sine communitatis et procerum regni illius assensu, quali ipsa primitus emanarunt.”h “To an act of law, statute or common, every man,” says Lord Chief Justice Vaughan, “is as much consenting, and more solemnly, than he is to his own private deed.”i Authorities to the same purpose might, without end, be heaped upon authorities from the law books. I forbear to trouble you with any more of them. Let us have recourse to what I may properly call a perpetually standing authority upon this very important subject—the writ for choosing members of parliament. It commands the sheriff of each county to cause two knights, the most fit and discreet of the county, and two citizens from every city, and two burgesses from every borough within the county, to be chosen according to law—“So that the said knights have full and sufficient power for themselves,j and the commonalty of the said county, and the said citizens and burgesses for themselves and the commonaltyk of the said cities and boroughs, severally from them, to do and consent to those things, which, by the favour of God, shall happen to be ordained by the common council of the kingdom: so that for default of such power, or through improvident election of the said knights, citizens, or burgesses, the said affairs remain not undone.”l Can language be more explicit to show the principle, upon which acts of parliament must be made, and consequently the principle, upon which alone they ought to be obeyed? It is directed, that the members have full and sufficient powers for themselves, and for their constituents from their constituents. This is precisely according to the analysis, which we have already given of the power of parliament. Why are those powers necessary? To do and consent to those things, which shall be ordained by parliament. Those powers are absolutely necessary; for, without them, the business of the nation would remain undone. Is it possible, that any one, who has ever seen this venerable and authentick legal instrument, could suppose, that the sovereign power of the nation was vested in the parliament of Great Britain? Is it possible, that one who has seen this writ could forget the rock, from which the members were hewn, and the hole of the pit from which they were dug? The humble servants, who must come furnished with “full and sufficient power from” their masters “the commonalty of the county, and the burgesses and the citizens separately—” “Divisim,” one by one—have those humble servants, when assembled together, the uncontrolled powers of the nation in their hands? When they are intrusted with the legislative, may they, therefore, assume also the executive and the judicial powers of their country?
We now see, in a very striking point of view, the strong and expressive import of the language of my Lord Hale, when he says, that an act of parliament is, as it were, a tripartite indenture, between the king, the lords, and the commons. They form three parties: each party has power to contract. The king contracts in his own right—for the king is also a man—and in consequence of the powers devolved on him by that original contract, long supposed, but, at the revolution of 1688, expressly recognized to have been made between him and the people. The lords of parliament contract solely in their own right. The members of the house of commons contract in their own right, for themselves, and in right of their constituents, for the commonalty of the whole realm. Thus we find every party and every power to form a contract, a compact, or an agreement—for these terms are synonimous—in the strictest and most proper sense of the words. The vital principle of every contract is the consent of the mind. My Lord Hale did not draw the obligatory principle of an act of parliament from a foreign fountain: he drew it, pure and clear, from its native springs.
Sir William Blackstone tells us, that the original of the obligation, which a compact carries with it, is different from that of a law. The original of the obligation of a compact we know to be consent: the original of the obligation of an act of parliament we have traced minutely to the very same source.
But acts of parliament are not the only—let us add, they are not the principal—species of law, known and obligatory in England. That kingdom boasts in the common law. In the countenance of that law, every lovely feature beams consent. This law is of vast importance. By it, the proceedings and decisions of courts of justice are regulated and directed. It guides the course of descents and successions to real estates, and limits their extent and qualifications: it appoints the forms and solemnities of acquiring, of securing, and of transferring property: it prescribes the manner and the obligation of contracts: it establishes the rules, by which contracts, wills, deeds, and even acts of parliament are interpreted.m This law is founded on long and general custom. A custom, that has been long and generally observed, necessarily carries with it intrinsick evidence of consent. Caution and prudence are universally recommended in the introduction of new laws: can caution and prudence be so strongly exemplified—can their fruits be so certainly reaped in any other laws, as in those that are established by custom? The prospect of convenience invites to the first experiment: a first experiment, successful, encourages to make a second. The successful experiments of one man or one body of men induce another man or another body of men to venture upon similar trials. The instances are multiplied and extended, till, at length, the custom becomes universal and established. Can a law be made in a manner more eligible? Experience, the faithful guide of life and business, attends it in its every step. Other laws demand to be taken upon trust: a good countenance is their only recommendation. Those, who introduce them, can only say, in their favour, that they look well. A customary law, with a modesty appropriate to conscious merit, asks for admittance only upon trial, and claims not to be considered as a part of the political family, till she can establish a character, founded on a long and intimate acquaintance. The same means, by which the character of one law is known and approved, are employed to try and discriminate the character of every other. In favour of every one that is recommended, it can be said, not only, that it has lived unexceptionably by itself, but also that it has lived in peace and harmony with all the others. In this manner, a system of approved and concording laws is gradually, though slowly, collected and formed. By a process of this kind, the immortal Newton collected, arranged, and formed his just and beautiful system of experimental philosophy. By the same kind of process, our predecessors and ancestors have collected, arranged, and formed a system of experimental law, equally just, equally beautiful, and, important as Newton’s system is, far more important still. This system has stood the test of numerous ages: to every age it has disclosed new beauties and new truths. In improvement, it is yet progressive; and what has been said poetically on another occasion, may be said in the strictest form of asseveration on this,—it acquires strength in its progress. From this system, we derive our dearest birthright and richest inheritance. The rise, the progress, the history, and the component parts of this invaluable system; its extension to America, and the principles of its establishment in the several states and in the national government, it will be my duty and my pleasure to trace and to exhibit in the course of these lectures. My present business is, to ascertain the origin of its obligatory force. Surely, this may be done with ease. The common law is founded on long and general custom. On what can long and general custom be founded? Unquestionably, on nothing else, but free and voluntary consent. The regions of custom afford a most secure asylum from the operations of absolute, despotick power. To the cautious, circumspect, gradual, and tedious probation, which a law, originating from custom, must undergo, a law darted from compulsion will never submit.
“Sic volo, sic jubeo, stet pro ratione voluntas,”* is the motto of edicts, proclaimed, in thunder, by the voice of a human superiour. Far dissimilar are the sentiments expressed in calm and placid accents by a customary law. I never intruded upon you: I was invited upon trial: this trial has been had: you have long known me: you have long approved me: shall I now obtain an establishment in your family? A customary law carries with it the most unquestionable proofs of freedom in the country, which is happy enough to be the place of its abode.
Some truths are too plain to be proved. That a law, which has been established by long and general custom, must have received its origin and introduction from free and voluntary consent, is a position that must be evident to every one, who understands the force and meaning of the terms, in which it is expressed. My object is to imprint, as well as to prove, this great political doctrine. Perhaps this cannot be done better, than by laying before you the sentiments, which an English parliament held upon this subject, above two hundred years ago. You will see how strongly they support the principle—that the obligation of human laws arises from consent. The sentiments were expressed on an occasion similar to one, which will still suggest matter of very interesting recollection to many minds—They were expressed when an attempt was made to establish, in England, a foreign jurisdiction. With becoming indignation against it, the parliament declare—“This realm is free from subjection to any man’s laws, but only to such as have been devised, made, and obtained within this realm, for the wealth of the same, or to such as, by sufferance of your grace and your progenitors, the people of this your realm have taken at their free liberty, with their own consent to be used amongst them, and have bound themselves by long use and custom to the observance of the same, not as to the observance of laws of any foreign prince, potentate, or prelate, but as to the customed and ancient laws of this realm, originally established as laws of the same, by the said sufferance, consents, and customs, and none otherwise.”n
Some writers, when they describe that usage, which is the foundation of common law, characterize it by the epithet immemorial. The parliamentary description is not so strong. “Long use and custom” is assigned as the criterion of law, “taken by the people at their free liberty, and by their own consent.” And this criterion is surely sufficient to satisfy the principle: for consent is certainly proved by long, though it be not immemorial usage.
That consent is the probable principle of the common law, is admitted by the Author of the Commentaries himself. “It is one of the characteristick marks of English liberty,” says he,o “that our common law depends upon custom, which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people.” I search not for contradictions: I wish to reconcile what is seemingly contradictory. But, if the common law could be introduced, as it is admitted it probably was, by the voluntary consent of the people; I confess I can not reconcile with this—certainly a solid—principle, the principle that “A law always supposes some superiour, who is to make it,” nor another principle, that “sovereignty and legislature are indeed convertible terms.”
A power, far beneath the sovereign power, may be invested with legislative authority; and its laws may be as obligatory as any other human laws. Of this, instances occur even in the government of Great-Britain.
It is necessarily and inseparably incident to all corporations, to make by-laws, or private statutes, for their government. These laws are binding upon themselves, unless contrary to the laws of the land, and then they are void.p From these positions, we clearly infer, that laws, obligatory upon those for whom they are made, may be enacted by a power, so far from being absolute and supreme, that its laws are void, when contrary to those enacted by a superiour power: so far do sovereignty and legislature, in this instance at least, appear to be from convertible terms: so far is it from being requisite to the very essence of a law, that it be made by the supreme power. Sir William Blackstone tells us, that in the provincial establishments in America, the assemblies had the power of making local ordinances; that subordinate powers of legislation subsisted in the proprietary governments; and that, in the charter governments, the assemblies made laws, suited to their own emergencies:q and yet, in these instances, he certainly did not admit, that “by sovereign power is meant the making of laws.”
I hope I have now shown, that the definition of municipal law in the Commentaries is not calculated even for the meridian of Great-Britain: it is still less calculated for that of many other governments: for, in many other governments, the distinction is still more strongly marked between the sovereign and legislative powers.
In the original constitution of Rome, the sovereign power, the dominium eminens, as it is called by the civilians, always resided in the collective body of the people. But the laws of Rome were not always made by that collective body. To the senate was indulged a privilege of legislation; partial and subordinate, it is true; but still a privilege of legislation. An act of the senate was not considered as a permanent law; but it was allowed to continue in force for one year; not longer, unless it was ratified by the people. To the plebeians, exclusive of the senators and patricians, a privilege of legislation was also indulged; but their laws bound only themselves. While we are taking notice of the different bodies, that possessed the power of legislation in Rome, it is proper to mention one very great defect, which existed in the constitution of that celebrated republick. A power, inferiour to that which made a law, could dispense with it. The senate, by its own decree, could dispense with a law, made by the whole collective body of the people. This power, dangerous in every free government, was often exercised, in Rome, to accomplish the most pernicious purposes.r
In the United States, and in each of the commonwealths, of which the union is composed, the legislative is very different from the supreme power. Instead of being uncontrollable, the legislative authority is placed, as it ought to be, under just and strict control. The effects of its extravagancies may be prevented, sometimes by the executive, sometimes by the judicial authority of the governments; sometimes even by a private citizen, and, at all times, by the superintending power of the people at large. These different points will afterwards receive a particular explication. At present, perhaps, this general position may be hazarded—That whoever would be obliged to obey a constitutional law, is justified in refusing to obey an unconstitutional act of the legislature—and that, when a question, even of this delicate nature, occurs, every one who is called to act, has a right to judge: he must, it is true, abide by the consequences of a wrong judgment.
Puffendorff, from whom the idea of a superiour, as forming a necessary ingredient in the idea of law, seems to have been transplanted into the Commentaries, insists much upon what he calls a maxim—that a person cannot oblige himself; “and this maxim,” he tells us, “is not confined to single men, but extends to whole bodies and societies:”s “for a person to oblige himself under the notion of a lawgiver, or of a superiour, is an impossibility.”t Hence the inference seems to be drawn, that “obligations are laid on human minds by a superiour.” To different minds, the same things, sometimes, appear in a very different manner. If I was to make a maxim upon this subject, it would be precisely the reverse of the maxim of Baron Puffendorff. Instead of saying, that a man cannot oblige himself; I would say, that no other person upon earth can oblige him, but that he certainly can oblige himself. Consent is the sole principle, on which any claim, in consequence of human authority, can be made upon one man by another. I say, in consequence of human authority; for, in consequence of the divine authority, numerous are the claims that we are reciprocally entitled to make, numerous are the duties, that we are reciprocally obliged to perform. But none of these can enter into the present question. We speak of authority merely human. Exclusively of the duties required by the law of nature, I can conceive of no claim, that one man can make upon another, but in consequence of his own consent. Let us, upon this occasion, as we have done upon some others, simplify the object by a plain and distinct analysis. Let us take for the subject of our analysis the very question we are upon—Whether a man can be bound by any human authority, except his own consent? Let us suppose, that one demands obedience from me to a certain injunction, which he calls a law, by performing some service pointed out to me: I ask him, why am I obliged to obey it? He says it is just I should do it. Justice, I tell him, is a part of the law of nature; give me a reason drawn from human authority. He tells me, he had promised it. Very well, perform your promise. Suppose he rises in his tone, and tells me, he orders it. Equal and free, I see no reason for obeying the order of one, who is only equal and free. Repelled from this attack upon my independence, he assails me on a very different quarter; and, softening his accents, represents how generous, nay how humane, it would be, to do as he desires. Humanity is a duty; generosity is a virtue; but neither is to be referred to human authority. Let invention be put upon the rack, and the severest torture will not draw from it a discovery of any external human authority, by which I am obliged to obey the supposed law, or to perform the supposed service. He tells me, next, that I promised to do it. Now, indeed, I discover a human source of obligation. If I promised to do it, I am bound to do it; unless the promise is either unlawful, or discharged; dissolved by an equal, or prohibited by a superiour authority. But this promise originated from consent; for if it was the abortion of compulsion—the effect sometimes of exterior and superiour human power, but never of human authority—I am not bound to consider it as my act and deed.
Let us now vary the supposition a little. Suppose this demand to be made upon me by one, of whose superiour judgment and unimpeached veracity I had the strongest and best founded belief: suppose me at that period of life—for there is such a period of life—when I should believe implicitly whatever was taught me by one, whom I knew I could so well trust: suppose this person, respected for his knowledge and integrity, should tell me, that he really thought it my duty to comply with the demand. I think I should probably feel a sense of obligation arise within me. But why? because this respectable person says it? No. But for a reason, which may be easily mistaken for this: because I believe, that what this respected person says must be true. Here, indeed, is a species of external human authority, exerted and obeyed for the wisest purposes: But this is very different from that external human authority, which is assigned by some as the source of obligation in human laws. This species of authority is said to have been carried to a very great height by Pythagoras, the celebrated philosopher. He delivered it as a maxim, and it was received as such in his school, that whatever he said must be true. Ipse dixit was an undisputed authority. But if folly and falsehood had been as inseparably associated with the character of Pythagoras, as veracity and wisdom were, in the minds of his followers, I ask—would his ipse dixit have been received as an undisputed authority? I presume not. To recur, then, to the supposition, which I last made; I should feel the sense of obligation arise in me, not because I should think it his will, that I should comply with the demand; but because I should believe in his opinion, that it was my duty to do so. This refers to a very different source. For let me suppose a little farther, that, after feeling this sense of obligation arise within me, I should come to learn, either from my own observation, or from authority still superiour to that of the person in whom I placed confidence, that this confidence was misplaced; that what he told me proceeded either from mistake, or from something worse than mistake; his will might continue the same, and my opinion concerning it might continue the same, but my sense of obligation would be greatly altered. These remarks, I hope, will be sufficient to show, that no exterior human authority can bind a free and independent man.
The next question is—can a man bind himself? Baron Puffendorff lays it down as a maxim, that he cannot: and on this maxim, applied to publick bodies as well as private individuals, he builds a very interesting series of argumentation—just, indeed, and unanswerable, if the basis, on which it rests, be solid and sound.
We have, at last, reached the bottom of the business. We are now come to the important question, the resolution of which must, in my opinion, decide the fate of all human laws. I say, in my opinion; for I have already given my reasons for thinking, that if a man cannot bind himself, no human authority can bind him. For one man, equal and free, cannot be bound by another, who is no more. The consequence necessarily is, that if a man can be bound by any human authority, it must be by himself. A farther consequence necessarily is, that if he cannot bind himself, there is an end of all human authority, and of all human laws. How differently, sometimes, things turn out, from what was expected from them! The idea of superiority, it was probably thought, would strengthen the obligation of human laws. When traced minutely and accurately, we find, that it would destroy their very existence. If no human law can be made without a superiour; no human law can ever be made.
First principles ought to be admitted with caution indeed. When you first read, in the Commentaries, this principle—“a law always supposes some superiour, who is to make it;” you did not suspect, I presume, that this principle is subversive of all human laws. You now perceive, that, if a man can be bound by human authority, it must be by his own. But is he his own superiour? The creative imagination of a Theobald himself could not suggest the fancy. He could only go so far as to say
None but himself can be his parallel.
Even the master of a show, who boasted, that his elephant was “the greatest elephant in the world,” thought it necessary, for preventing mistakes, to add—except himself.
But to resume seriously the important question—can a man bind himself? Simple facts have sometimes led to the greatest discoveries. The sublime theory of gravitation was first suggested to Newton by an apple falling from a tree.
At the end of the second volume of the Commentaries are precedents of some useful instruments, known to the law of England. Among others, there is a precedent of a common bond. In that bond, there are these words written—I bind myself. This form of a bond has been known and used and approved in England from time immemorial. If a man cannot bind himself, then all the bonds, which have been executed in England, have been mere nullities. The substantial parts of that bond are parts of the common law of England. The part, which I have mentioned, is certainly a most substantial one. All parts of the precedent are not substantial: many of them may be omitted or altered without vitiating the force of the bond. The law does not require any particular form of words: but one thing it strictly requires—such words as declare the intention of the party, and denote his being bound: such words will be sufficient: such words will be carried into effect by the judgment of the law.
Let us examine the obligatory principle of a bond by legal tests, by triers at the common law. Suppose one applies to a court of justice to enforce the obligation of a bond, and proposes it as the foundation of his demand. In what manner is he directed by the law to express the legal import of the instrument? He is directed to declare, that, by this instrument, the party who executed it, “acknowledged himself to be bound,”u or “bound himself.”v The precedents are in both forms. When the action is properly instituted, the party, against whom it is instituted, is next called upon, with all legal solemnity, to make his defence—for against no man ought a decision to be pronounced till he has an opportunity of being heard. He appears: the instrument is produced. What can he say, why a decision should not be pronounced against him? The common law furnishes him with forms to suit almost every case, certainly every case that has been brought before a court of justice. If the case of the present defendant is so very peculiar, that nothing similar to it ever happened before; the common law will protect him in forming a defence, suited to his very peculiar case. Among all the different kinds of pleas, fitted for every case that has happened, for almost every case that can happen, are there any furnished, which bear towards this principle—that the defendant could not oblige himself? There are. But they are furnished only for those, who, by reason of their infancy, or any other cause, appear to want a common degree of understanding. For without understanding it, no obligation can be legitimately formed. There are others too, that respect another situation, which it will be proper to examine particularly; because it is probable, that it will throw much light upon the principle of obligation to human laws. The understanding, though necessary, is not, of itself, sufficient to form a legitimate obligation: in a legitimate obligation, the will must concur; compulsion will not be received as a substitute for consent. The common law is a law of liberty. The defendant may plead, that he was compelled to execute the instrument. He cannot, indeed, deny the execution of it; but he can state, in his plea, the circumstances of compulsion attending its execution;w and these circumstances, if sufficient in law, and established in fact, will procure a decision in his favour, that, in such circumstances, he did not bind himself. If he never executed the instrument at all; he can state the fact; and unless the execution of it be proved against him, he will, upon this plea likewise, obtain a decision, that he did not bind himself. But if he can do none of these things—if he executed the instrument; if he executed it voluntarily; if he executed it knowingly; the law will pronounce, that he bound himself. This has been the regular course of the law during time immemorial—a course, uninterrupted and unrepealed. In the municipal law of England, therefore, the doctrine is established—that a man can bind himself. This doctrine is established by strict legal inference from the principles and the practice of the common law. The consequence is, that, on the principles of the municipal law of England, a superiour is not necessary to the existence of obligation. A man can bind himself. But is his bond a law? Yes, it is a law binding upon himself. Farther it ought not to bind. But shall a private contract be viewed in the venerable light of a law? Why not, if it has all its essential properties? Suppose this contract to have been made by millions, contracting on each side: it would have been dignified by the name of a treaty: as such, had the United States been the contractors on one side, it would have become a law of the land: as such, it would have become an important part of the law of nations. Is the act of millions more binding upon those millions, than the act of one is binding upon that one? Light will break in upon us by degrees.
By the law of England, a man can bind himself. The law of England speaks not a language contrary to that of the law of nature. By this law also, a man can bind himself. “If among men,” says Barbeyrac,x “the immediate reason why one ought to be subject to the command of another is ordinarily this, that he has voluntarily consented to it”—and we have shown, that this is not only ordinarily, but always the reason—“then,” continues he, “this consent, and all other engagements whatever are only obligatory through that maxim of natural law, which tells us, that every one ought to observe what he has engaged himself to.” This maxim is, indeed, a part of the law of a superiour; but this maxim is founded upon the previous truth—that a man can engage himself: I need not surely prove, that an engagement must be made before it can be observed. “That we should be faithful to our engagements,” says the very learned President Goguet,y “is one of those maxims, which derive their origin from those sentiments of equity and justice, which God has engraven on the hearts of all men: they are taught us by that internal light, which enables us to distinguish between right and wrong.” The same important lesson is delivered to nations, as well as to men.z
We see now, that, both by the law of England, and by the superiour law of nature, men and nations can bind themselves. Can they be bound without their consent? Is it necessary to dig for another foundation, on which the obligatory force of human laws can be laid? Can any other solid foundation be found?
That this foundation is sufficient to support the whole beautiful structure of human law, will abundantly appear.
“The union of families,” says the same respectable author, whom I quoted just now, “could not have taken place but by an agreement of wills. When we view society as the effect of unanimous concord, it necessarily supposes certain covenants. These covenants imply conditions. These conditions are to be considered as the first laws.”a We have already seen the sentiments of the excellent Hooker—that “human edicts, derived from any other human source, than the consent of those, upon whom they are imposed, are nothing better than mere tyranny. Laws they are not, because they have not the publick approbation.”b “The mother of civil law,” says Grotius,c “is that very obligation, which arises from consent.” “So that the civil law,” says his commentator, Barbeyrac,d “is, at the bottom, no more than a consequence of that inviolable law of nature—every man is obliged to a religious observance of his promise.” “The legislative power of a civil society,” says Dr. Rutherford, in his Institutes of Natural Law,e “is acquired by the immediate and direct consent of the several individuals, who make themselves members of such society. And the legislative body acquires it, as by the immediate and direct consent of the collective body of the society, so by the remote and indirect consent of the several members.”
I hope I have now performed my engagement: I hope I have evinced, from authority and from reason, from precedent and from principle, that consent is the sole obligatory principle of human government and human laws. To trace the varying but powerful energy of this animating principle through the formation and administration of every part of our beautiful system of government and law, will be a pleasing task in the course of these lectures. Can any task be more delightful than to pursue the circulation of liberty through every limb and member of the political body? This kind of anatomy has a peculiar advantage—it traces, without destroying, the principle of life.
Before I conclude, it will be proper to take a concise view of the consequences, necessarily resulting from the doctrine, that the legislative power must be “absolute, uncontrolled, irresistible, and supreme.” 1. the power, which makes the laws, cannot be accountable for its conduct; it cannot be submitted either to human judgment, or to human punishment. For both these, says Puffendorff,f suppose a superiour; but a superiour to the supreme, in the same order of men, and the same notion of government, is a contradiction. 2. If to every human law, a superiour is necessary: and if the power, which makes a human law, must be supreme; the consequence unquestionably is, that that power cannot be bound by the laws, which it makes: for where shall we find a superiour to what is supreme? “When a civil power,” says Puffendorff,g “is constituted supreme, it must, on this very score, be supposed exempt from human laws; or, to speak more properly, above them. Human laws are nothing else but the decrees of the supreme power, concerning matters to be observed, by the subjects, for the publick good of the state. That no such edicts can directly oblige the sovereign is manifest; because his very name and title supposeth, that no bond or engagement can be laid on him by any other mortal hand: and for a person to oblige himself, under the notion of a lawgiver, or of a superiour, is an impossibility.” 3. If the legislative power be absolute, uncontrolled, and supreme; all opposition to its acts must be unlawful. this, indeed, is not so much a consequence, as a part of the doctrine. In the language of the Commentaries, this power is “irresistible,”h Many recollect the numerous and the extravagant inferences, which, at a former period, were drawn from the supposed absolute, irresistible, uncontrolled, and supreme power of the British parliament. They will fall under our notice, when we come to examine the principles, the rise, and the progress of the American constitutions and governments.
I have already mentioned, that though Sir William Blackstone was the first, he has not been the last, who defined municipal law, as applied to the law of England, upon unsound and dangerous principles. This doctrine has been adopted by his successour in the Vinerian chair, though with some degree of apparent hesitation. “Every state,’ says he, “must, like individuals, be subject to certain rules.” The necessity of rules infers the necessity of political superiours.”i “The giving of laws to a people, forms the most exalted degree of human sovereignty; and is, perhaps, in effect, or in strict propriety of speech, the only truly supreme power of the state.”j The sensible and decided Mr. Paley, in his principles of moral and political philosophy, has propagated the same doctrine without limitation and without reserve. “As a series of appeals,” says he, “must be finite, there necessarily exists, in every government, a power, from which the constitution has provided no appeal; and which power, for that reason, may be termed absolute, omnipotent, uncontrollable, arbitrary, despotick; and is alike so, in all countries. The person, or assembly, in whom this power resides, is called the sovereign or the supreme power of the state. Since to the same power universally appertains the office of establishing publick laws, it is also called the legislature of the state.”k It is not improbable, that the doctrine is disseminated wherever the Commentaries are generally received as authority.
I have already intimated, that there is a period in our lives, when we receive implicitly whatever we are taught, especially by those, in whom, we think, we can confide. “It is the intention of nature,” says the ingenious Dr. Reid,l “that we should be carried in arms before we are able to walk upon our legs; and it is likewise the intention of nature, that our belief should be guided by the authority and reason of others, before it can be guided by our own reason.” At this very period of life, the Commentaries, as a book of authority, are put into the hands of young gentlemen, to form the basis of their law education. Is it surprising, that the reception of its doctrines should be indiscriminate, as well as implicit? Indeed the former is the unavoidable consequence of the latter. But doctrines received implicitly, at this period of life, are not so easily dismissed in its subsequent stages. “For,” says the same experienced judge of human nature,m “the novelty of an opinion, to those who are too fond of novelties; the gravity and solemnity, with which it is introduced; the opinion we have entertained of the author; and, above all, its being fixed in our minds at that time of life, when we received implicitly what we are taught; may cover its absurdity, and fascinate the understanding for a time”—I will add—for a long time. These observations explain, and, while they explain, they justify my conduct in examining, so fully and so minutely, the definitions of law in general and of municipal law given in the Commentaries on the laws of England. This full and minute examination has, at the same time, given me a fit opportunity of discovering, of illustrating, and, I, hope, of establishing very different principles, as the foundation of the science of law. In this, as in every other science, it is all important, that the foundation be properly and surely laid.
Permit me to close this subject with sentiments, which a very learned and ingenious judge expressed, on an occasion somewhat similar to this, and in a situation somewhat similar to mine. The principles of the revolution in England have been dear to whigs: they have been opposed inveterately and pertinaciously by tories. Some passages in the law performances of the great and good Lord Chief Justice Hale were conceived, on both sides, and justly, to militate against the principles of that revolution. These passages were cited with uncommon exultation, and were, no doubt, disseminated by the votaries of the abdicated family with extraordinary zeal. Seventy years after the revolution, and sixteen years after the last rebellion, which was raised in order to overturn its happy establishment, Mr. Justice Foster thought it his duty to publish some observations on those passages, with a view to detect and expose their mistakes, which were great, and to defend the principles, on which the revolution and the subsequent establishment were founded. Concerning these observations, and their publication, he thus speaks, “The cause of the Pretender seems now to be absolutely given up. I hope in God it is so. But whether the root of bitterness, the principles which gave birth, and growth, and strength to it, and have been, twice within our memory, made a pretence for rebellion, at seasons very critical, whether those principles be totally eradicated, I know not. These I encounter, by showing that certain historical facts, which the learned Judge hath appealed to in support of them, either have no foundation in truth, or, were they true, do not warrant the conclusions drawn from them.
“The passages I animadvert upon have been cited with an uncommon degree of triumph by those, who, to say no worse of them, from the dictates of a misguided conscience, have treated the revolution and present establishment as founded in usurpation and rebellion; and they are in every student’s hand. Why, therefore, may not a good subject, be it in season or out of season, caution the younger part of the profession against the prejudices, which the name of Lord Chief Justice Hale, a name ever honoured and esteemed, may otherwise beget in them? I, for my part, make no apology for the freedom I have taken with the sentiments of an author whose memory I can love and honour, without adopting any of his mistakes on the subject of government.
“It cannot be denied, and I see no reason for making a secret of it, that the learned Judge hath, in his writings, paid no regard to the principles, upon which the revolution and present happy establishment are founded. The prevailing opinion of the times, in which he received his first impressions, might mislead him. And it is not to be wondered at, if the detestable use the parliamentary army made of its success in the civil war did contribute to fix him in the prejudices of his early days. For, in the competition of parties, extremes, on one side, almost universally produce their contraries on the other. And even honest minds are not always secured against the contagion of party prejudice.
“But, it matters not with us, whether his opinion was the effect of prejudices early entertained, or the result of cool reflection; since the opinion of no man, how great or good soever, is or ought to be the sole standard of truth.”n
The next great title in my course of lectures is man, the subject of all, and the author, as well as the subject of part of those kinds of law, of which I have now given a general and summary view. Man I shall consider as an individual, as a member of society, as a member of a confederation, and as a part of the great commonwealth of nations.
On a slight glance of this subject, it may seem, perhaps, not to be very intimately connected with a system of lectures on law. And, indeed, it must be owned, that as law, or what is called law, is sometimes taught, and sometimes practised, there is but a slender and very remote alliance between law and man. But, in the real nature of things, the case is very different.
You have not, I am sure, forgotten, that, in an early address, which I made to you, I recommended, most earnestly, to the utmost degree of your attention, an outline of study, supported with all the countenance and authority of three distinguished and experienced characters—Bacon, Bolingbroke, Kaims: it will not, I am sure, be forgotten, that metaphysical knowledge, or the philosophy of the human mind, formed a very conspicuous part of that outline; one of those “vantage grounds,” which everyone must climb, who aims to be really a master in the science of law.
“Natura juris a natura hominis repetenda est,”* is the judgment of Cicero. It is a judgment, not more respectable on account of the high authority, which pronounces it, than on account of its intrinsick solidity and importance.
You have heard me mention, that a proper system of evidence is the greatest desideratum in the law. From a distinct and accurate knowledge of the human mind, and of its powers and operations, the principles and materials of such a system must be drawn and collected.
Whatever produces belief may be comprehended under the name of evidence. Belief is a simple and undefinable operation of the mind; but, by the constitution of our nature, it is intimately and inseparably associated with many other powers and operations. This association should be minutely traced: all its properties and consequences should be distinctly marked. Belief attends on the perceptions of our external senses, on the operations of our internal consciousness, on those of memory, on those of intuition, on those of reason: it is attendant, likewise, on the veracity, the fidelity, and the judgment of others. Hence the evidence of sense, the evidence of recollection, the evidence of consciousness, the evidence of intuition, the evidence of demonstration, probable evidence, the evidence of testimony, the evidence of engagements, the evidence of opinion, and many other kinds of evidence; for this is, by no means, a complete enumeration of them.
It is difficult, perhaps it is impossible, to discover any common principle, to which all these different kinds of evidence can be reduced. They seem to agree only in this, that, by the constitution of our nature, they are fitted to produce belief.
It is superfluous to add, that the social operations of the mind should be well known and studied by him, who wishes to reach the genuine principles of legal knowledge.
[a ] 1. Bl. Com. 44.
[b ] 1. Bl. Com. 46.
[c ] Id. 48. 49.
[d ] Id. 51.
[e ] Id. 52.
[f ] 1. Bl. Com. 147.
[g ] Id. 160.
[h ] Id. 161.
[i ] Id. 162.
[j ] Id. 161.
[k ] Id. 161.
[l ] Puff. 688. b. 7. c. 6. s. 3.
[m ] 2. Hein. s. 150. p. 152.
[n ] 1. Bl. Com. 160.
[o ] 4. Ins. 36.
[p ] 2. Burl. 28.
[q ] Puff. 640. b. 7. c. 2. s. 8.
[r ] 2. Burl. 42.
[s ] Puff. 654. b. 7. c. 3. s. 1.
[t ] 2. Hutch. 227.
[u ] 1. Bl. Com. 211, 212.
[v ] Id. 233.
[w ] Hale’s Hist. 2.
[x ] 2. Bl. Com. 295.
[y ] Id. 296.
[z ] 4. Ins. 1.
[a ] 2. Atk. 654.
[b ] 1. Bl. Com. 185.
[c ] 1. Bl. Com. 44. 45.
[d ] Puff. 58. 59. b. 1. c. 6. s. 1.
[e ] Puff. 59. b. 1. c. 6. s. 2.
[f ] 3. Gibbon. 6. 7. Tac. Ann. XII. 62.
[g ] 1. Bl. Com. 236, note. “que lez gentez du people avont faitez et esliez.”
[h ] Fortes. c. 18.
[i ] Vaugh. 392.
[j ] It is the wisdom of the English law, that acts of parliament are equally binding to the makers of them as to the rest of the people. The makers are empowered for themselves, as well as for their constituents; and themselves, as well as their constituents must taste the sweet or bitter fruits of their own works. This suggests a powerful motive for caution and justice in their determinations (2. Whitlocke 87.) But this doctrine ill agrees with the new and foreign theory, introduced into the Commentaries—“A law always supposes some superiour, who is to make it.” 1. Bl. Com. 43.
[k ] It is a great trust reposed in members of parliament, to have the power of the whole commonalty of a county, or city, or borough conferred on them. The acts of the members are the acts of the commonalty, from whom they have their power, and who are bound by them. 2. Whitlocke 89.
[l ] 1. Whitlocke 2. 3.
[m ] Hale’s Hist. 24.
[* ] [Thus I will, thus I command, let my will stand as the reason.]
[n ] St. 25. H. 8. c. 21. s. 1.
[o ] 1. Bl. Com. 74.
[p ] 1. Bl. Com. 475.
[q ] 1. Bl. Com. 108.
[r ] In the government of Media, an opposite extreme prevailed. When an edict was once published, it was not in the power of the legislator to alter or repeal it. The same power, which is sufficient to make, should be sufficient to abrogate a law. 3. Gog. Or. Laws. 11.
[s ] Puff. 63. b. 1. c. 6. s. 7.
[t ] Id. 688. b. 7. c. 6. s. 2.
[u ] Boh. Ins. Leg. 102.
[v ] 2. Mod. Ent. 178.
[w ] 5. Rep. 119.
[x ] Puff. 67. n. 2. to b, 1. c. 6. s. 12.
[y ] 1. Gog. Or. Laws. 7. 8.
[z ] Vat. Pref. 12.
[a ] 1. Gog. Or. Laws. 7.
[b ] Hooker. b. 1. s. 10. p. 19. 20.
[c ] Pref. 20. s. 16.
[d ] Id. note to s. 16.
[e ] Vol. 2. 222.
[f ] B. 7. c. 6. s. 2. p. 687.
[g ] B. 7. c. 6. 5. 3. p. 688.
[h ] 1. Bl. Com. 49.
[i ] El. Jur. (4to) 26. 27.
[j ] El. Jur. (4to) 43.
[k ] 2. Paley 185.
[l ] Inq. 433.
[m ] Reid. Ess. In. 568.
[n ] Fost. Pref. 6. 7.
[* ] [The nature of the law is to be sought from the nature of man himself.]