PLAN.
GENTLEMEN,
PERMIT me, at this time, to address, in a very few words, the younger and more inexperienced part of those who attend my lectures ― I say the younger and more inexperienced part; because my lectures are honoured with the presence of some, whose learning, talents, and experience fit them for communicating instead of receiving instruction here. For the honour of their presence, I must consider myself indebted to the importance of my subject; and to a desire, generous and enlightened, of countenancing and encouraging every attempt, however feeble, to diffuse knowledge on a subject so important.
You have seen, my young friends, in what a high point of view I consider your education. Is this on your own account? Partly it is ― that you may be great and good men. But solely it is not; for more extended hopes are entertained concerning you: you are designated by your education, and by your country, to be great and good citizens.
In no other part of the world, and in no former period, even in this part of it, have youth ever beheld so glorious and so sublime a prospect before them. Your country is already respectable for its numbers; it is free; it is enlightened; it is flourishing; it is happy: in numbers; in liberty; in knowledge; in prosperity; in happiness it is receiving great and rapid accessions. Its honours are already beginning to bud: in a few years, they will "blossom thick" upon you. You ought certainly, by proper culture, to qualify yourselves in such a manner, that when the blossoms fade and fall, the fruit may begin to appear. Remember that, in a free government, every honour implies a trust; that every trust implies a duty; and that every duty ought to be performed.
I mean not, that such of you as are designed for the practice of the law, should be inattentive to the emoluments of your profession; but I mean that you should consider it as something higher than a mere instrument of private gain. By being fitted for higher purposes, it will not be less fit, it will be more fit for accomplishing this.
It is peculiarly necessary, that you should, as soon as possible, form proper conceptions of what ought to be your objects in your course of study. Let them not be fixed too low: the higher your aims, the higher your attainments will be. To assist you in fixing those aims, let me lay before you the sentiments of a writer, who wrote on some subjects most excellently, and on others most contemptibly ― I mean Lord Bolingbroke. When he wrote on politicks or business, he wrote well; because he wrote on what he knew: when he wrote concerning religion, he wrote ill; because he wrote concerning that, of which he was ignorant. The passage I am about to quote to you is vouched by the respectable authority of Lord Kaims, who considered it, and justly, as a master piece of expression and thought.
"I might instance," says he, "in other professions, the obligations men lie under of applying themselves to certain parts of history; and I can hardly forbear doing it in that of the law, in its nature, the noblest and most beneficial to mankind, in its abuse and debasement, the most sordid and the most pernicious. A lawyer now is nothing more, I speak of ninety nine in a hundred at least" (the proportion in this country, I believe, is much smaller) "to use some of Tully's words, "nisi liguleius quidam cautus, et acutus pręco actionum, cantor formularum, auceps syllabarum:" but there have been lawyers that were orators, philosophers, historians: there have been Bacons and Clarendons. There will be none such any more, till, in some better age" (I hope that better age has found you, my young friends) "true ambition or the love of fame prevail over avarice; and till men find leisure and encouragement for the exercise of this profession, by climbing up to the vantage ground, so my Lord Bacon calls it, of science,14 instead of groveling all their lives below, in a mean but gainful application to all the little arts of chicane. Till this happen, the profession of law will scarce deserve to be ranked among the learned professions: and whenever it happens, one of the vantage grounds, to which men must climb, is metaphysical, and the other, historical knowledge." By metaphysical knowledge, his lordship evidently means the philosophy of the human mind; for he goes on in this manner. "They must pry into the secret recesses of the human heart, and become well acquainted with the whole moral world, that they may discover the abstract reason of all laws: and they must trace the laws of particular states, especially of their own, from the first rough sketches to the more perfect draughts; from the first causes or occasions that produced them, through all the effects, good and bad, that they produced."15
14. It is not possible to discover the more remote, and deeper parts of any science, if you stand but upon the level of the same science, and ascend not to a higher science. 2. Ld. Bac. 432.
15. Boling. of the Study of History. let. 5. p.149.
Such, my young friends, are the great prospects before you; and such is the general outline of those studies, by which you will be prepared to realize them. Suffer me to recommend most earnestly this outline to the utmost degree of your attention. It comes to you supported with all the countenance and authority of Bacon, Bolingbroke, Kaims ― two of them consummate in the practice, as well as in the knowledge of the law ― all of them eminent judges of men, of business, and of literature; and all distinguished by the accomplishments of an active, as well as those of a contemplative life. The propriety, the force, and the application of their sentiments will be gradually unfolded, fully explained, and warmly urged to you in the course of my lectures.
It is by no means an easy matter to form, to digest, and to arrange a plan of lectures, on a subject so various and so extensive as that of law. With great deference to some of you, with anxious zeal for the information of others, I lay before you the following analysis: reserving, however, to myself, the full right and force of the protestation, which I have already borrowed
from Sir Henry Spelman, of adding, retracting, correcting, and polishing, as, on more mature consideration, shall appear to me to be expedient.16
16. Some alterations, as the reader will observe, were afterwards made in the plan; but they are neither numerous nor important and need not be here particularized. Ed.
I begin with the general principles of law and obligation. These I shall investigate fully and minutely; because they are the basis of every legal system; and because they have been much misrepresented, or much misunderstood.
Next, I shall proceed to give you a concise and very general view of the law of nature, of the law of nations, and of municipal law.
I shall then consider man, who is the subject of all, and is the author as well as the subject of the last, and part of the second of these species of law. This great title of my plan, dignified and interesting as it is, must be treated in a very cursory manner in this course. I will, however, select some of the great truths which seem best adapted to a system of law. I will view man as an individual, as a member of society, as a member of a confederation, and as a part of the great commonwealth of nations.
His situation, under the third relation, is, in a great measure, new; and, to an American, peculiarly important: It will, therefore, merit and obtain peculiar attention.
The proper discussion of this title will draw on a discussion of the law of nations, under an aspect, almost
wholly new. How far, on the principles of the confederation, does the law of nations become the municipal law of the United States? The greatness of this question is selfevident: it would be very unwise, at present, even to hint at an answer.
After having examined these important preparatory topicks, I shall trace the causes, the origin, the progress, the history, the kinds, the parts, and the properties of government.
Under this title, I shall have occasion to treat concerning legislative, executive, and judicial power; and to investigate and compare the simple and the mixt species of governments and constitutions ― one, particularly, that is simple in its principle, though diversified in its form and operations.
This will lead me to a particular examination of the constitution and government of the United States, of Pennsylvania, and of her sister commonwealths.
By this time, we shall be qualified to enter, with proper advantage, upon the illustration of the different parts of our municipal law. The common law is the first great object, which will here present itself. I shall think it my duty to investigate very carefully its principles, its nature, and its history; particularly the great event of its transmigration from Europe to America; and the subsequent juridical history of the American States.
Our municipal law, I shall consider under two great divisions. Under the first, I shall treat of the law, as it relates to persons: under the second, I shall treat of it, as it relates to things.
The division of the United States into circuits, districts, states, counties, and townships will, probably, be introduced here, with some remarks concerning the causes, the operation, and the consequences of those divisions.
In considering the law as it relates to persons, the legislative department of the United States will occupy the first place; the executive department, the second; and the judicial department, the third.
Under the first, the institution and powers of congress will come into view. The principles on which the senate and house of representatives are separately established, will be carefully discriminated; and the necessary remarks will be made on the great doctrine of representation. The importance and the manner of legislation will also claim a portion of our regard.
In considering the executive authority of the United States, the appointment, the powers, and the duties of the president, will first attract our notice. We will then proceed to consider the number and the nature of the subordinate executive departments. We shall here have an opportunity of taking a very general view of the civil, commercial, fiscal, maritime, and military establishments of the United States.
When we come to the judicial department, our attention will be first drawn to the supreme court of the United States. Its establishment and its jurisdiction will be particularly considered; as also the establishment and jurisdiction of the circuit and district courts.
Here the nature, the history, and the jurisdiction of courts in general; and the powers and duties of judges, juries, sheriffs, coroners, counsellors, and attornies will be naturally introduced.
Perhaps this may be the proper place, likewise, for some general observations on the nature and philosophy of evidence; a proper system of which is the greatest desideratum in the law.
The investigation of the different parts of the constitution and government of the United States, will lay the foundation of a very interesting parallel between them and the pride of Europe ― the British constitution.
If the consideration of the legislative, executive, and judicial departments of the sister states can, without intricacy or confusion, be severally arranged under the three corresponding articles in the constitution of the United States; the parts of my plan will be considerably reduced in their number. I hope, but I am not confident, that this can be done. Upon this, as upon every other part of my plan, I shall be thankful for advice.
Bodies politick and inferiour societies will be described and distinguished.
The relations of private and of domestick life will pass in review before us; and after these, the rights and duties of citizens will come under consideration.
Here the important principles of election will receive the merited attention.
The rights, privileges, and disabilities of aliens will then be examined.
Happy would it be, if the great division of the law, which relates to persons, could be closed here. But it cannot be done. We are under the sad necessity of viewing law as sometimes violated, and man as sometimes guilty. Hence the ungracious doctrine of punishment and crimes.
I will introduce this disagreeable part of my system with general observations concerning the nature of crimes, and the necessity and the proportion of punishments next, I will descend into a particular enumeration and description of each. and I will afterwards point out the different steps prescribed by the law for apprehending, detaining, trying, and punishing offenders.
Here warrants, arrests, attachments, bail, commitments, imprisonment, appeals, informations, indictments, presentments, process, arraignments, pleas, trials, verdicts, judgments, attainders, pardons, forfeitures, corruption of blood, and executions will be considered.
With regard to criminal law, this observation may be made even in a summary: it greatly needs reformation. In the United States, the seeds of reformation are sown.
As to the second great division of our municipal law, which relates to things; it may be all comprehended under one word ― property. Claims, it is true, may arise from a variety of sources, almost infinite: but the declaration of every claim concludes by alleging a damage or a demand; and the decision of every successful claim concludes by awarding a satisfaction or a restitution in property.
I shall trace the history of property from its lowest rude beginnings to its highest artificial refinements; and, by that means, shall have an opportunity of pointing out the defects of the first, and the excesses of the last.
Property is of two kinds; publick and private. Under publick property, common highways, common bridges, common rivers, common ports are included. In the United States, and in the states composing the Union, there is much land belonging to the publick.
Private property is divided into two kinds; personal and real: things moveable are comprehended under the first division: things immoveable, under the second.
Estates in real property are measured by their duration. An estate of the greatest duration, is that which is in fee, or "to a man and his heirs," in the language of the common law. Real property of shorter duration is known by the names of estates tail, estates in tail after possibility of issue extinct, estates by the curtesy of England, estates in dower, estates for life, estates for years, estates by sufferance, and estates at will.
Estates may be either absolute or conditional. Under the title of conditional estates, the excellent law of Pennsylvania with regard to mortgages will deserve particular consideration.
Estates may be in possession or in expectancy. Under the last head, reversions, remainders, vested and contingent, and executory devises will be treated.
Property may be joint or cotemporary, as well as separate and successive. Here we will treat concerning coparceners, partners, joint tenants, and tenants in common.
Property may be acquired by occupancy, conveyance, descent, succession, will, custom, forfeiture, judgment in a court of justice. In much the greatest number of instances, the acquisition of property by one is accompanied with the transfer of it by another.
Conveyances are by matter of record; as a fine, a common recovery, a deed enrolled: or by matter in pais; as livery, deed: here the nature and different kinds of deeds, at common law, and by virtue of statutes, will be particularly considered.
Property may consist of things in possession, or of things in action.
Land, money, cattle, are instances of the first kind; debts, rights of damages, and rights of action are in. stances of the second kind.
These are prosecuted by suit.
You have heard much concerning the forms of process, and proceedings, and pleadings. Much has been written in praise, and much has been written in ridicule, of this part of law learning. It has certainly been abused: in some hands, it has become, and daily does become ridiculous. And what is there that has been exempted from a similar fate! religion herself, elegant and simple as she is, yet, when dressed in the tawdry or tattered robes put upon her by the false taste of her injudicious friends, assumes an awkward and ridiculous appearance.
Law has experienced the same treatment with her elder sister. But though the learning with regard to pleas and pleading has been abused, it may certainly be employed for the most excellent purposes.
When properly directed and properly used, the science of well pleading is, indeed, in the language of Littleton, "one of the most honourable, laudable, and profitable things in our law."17 Let me also adduce, in its favour, the weighty testimony of Earl Mansfield.18 "The substantial rules of pleading," says this very able judge, "are founded in strong sense, and in the soundest and closest logick; and so appear when well understood and explained: though, by being misunderstood and misapplied, they are too often made use of as the instruments of chicane."
Permit me to add, that some of the forms of writs and pleas, particularly those that are most ancient, are models of correct composition, as well as of just sentiment.
17. Litt. s. 534.
18. 1. Burr. 319.
The history of a suit at law, from its commencement, through all the different steps of its progress, to its conclusion, presents an object very interesting to a mind sensible to the beauty of strict and accurate arrangement. The dispositions of the drama are not made with more exactness and art. Every thing is done by the proper persons, at the proper time, in the proper place, in the proper order, and in the proper form.
This history may be comprised under the following titles ― original writ, process, return, appearance ― in person, by guardian, by next friend, by attorney ― bail, declaration, profert, over, imparlance, continuance, pleas ― in abatement and bar ― replication, rejoinder, issue, demurrer, trial, demurrer to evidence, bill of exceptions, verdict, new trial, judgment, appeal, writ of error, execution.
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