—— Souter Johnnie,His antient, trusty, drouthie cronie—
—— Souter Johnnie,His antient, trusty, drouthie cronie—
is said to be a striking likeness of a living wight—a cobbler near Maybole; not that this individual sat for his portraiture, but that the artist appears to have wrought from the reminiscences of two interviews with which he was favored, after twice travelling 'some lang Scotch miles,' in order to persuade the said "souter" to transfer his body, by means of his pair of soles, from his own to the artist's studio. The bribe of two guineas a-week, exclusive of "half-mutchkins withouten score," proved, however, unavailing, and the cobbler remained firm to thelast. By this refusal, "the birkie" has only become poorer by the said couple of guineas, and certain "half-mutchkins drouthier," for so true has the eye of the sculptor proved, that every one is said instantly to recognise the cobbler's phiz and person. A strange perverseness, indeed, or fatality, or what you will, seems to have seized upon all the favored few selected as fitting archetypes for these admirable figures. For, Tam's "nether man" occasioning some anxiety in the perfecting of its sturdy symmetry, a carter, we believe, was laid hold of, and thegamashins, being pulled on for half-an-hour, Tam'sright legwas finished in rivalship of the said gentleman'ssupporter. It appears to have been agreed upon that he should return at a fitting opportunity, having thus left Tam "hirpling:" but, in the interval, the story of the sitting unfortunately takingair, and the soubriquet of "Tam o' Shanter" threatening to attach to the lawful and Christian appellations of the man of carts, no inducement could again bring him within the unhallowed precincts of our sculptor's work-room. In like manner, though at a somewhat later period, while the artist was engaged upon the figure of the landlady, no persuasion could prevail upon one of the many "bonny lasses" who have given such celebrity to Ayr, to exhibit even the "fitting of their pearlings" to Mr. Thom's gaze. One sonsy damsel, on being hard pressed to grant a sitting, replied, "Na, na, I've nae mind to be nickinamed 'landlady;' and, as for gudewife, twa speerings maun gang to that name."
It will, doubtless, excite the admiration of every one in the slightest degree conversant with the Arts, that these figures, so full of life, ease and character, were thus actually executed without model, or drawing, or palpable archetype whatsoever. The artist, indeed, knows nothing of modelling; and so little of drawing, that we question if he would not find difficulty in making even a tolerable sketch of his own work. The chisel is his modelling tool—his pencil—the only instrument of his art, in short, with which he is acquainted, but which he handles in a manner, we may say, almost unprecedented in the history of sculpture.—This, however, is the minor part; for we think, nay, are sure, we discover in this dexterity of hand, in this unerring precision of eye, in this strong, though still untutored, conception of form and character—the native elements of the highest art. These primodial attributes of genius, by proper culture, may do honor to the country and to their possessor. At all events, instruction will refine and improve attempts in the present walk of art, even should study be unable to elevate attainment to a higher. Now, however, it would be not only premature, but unjust, to criticise these statues as regular labors of sculpture. They are to be regarded as wonderful, nay, almost miraculous, efforts of native, unaided, unlearned talent—as an approach to truth almost in spite of nature and of science; but they do not hold with respect to legitimate sculpture—the high-souled, the noblest, the severest of all arts—the same rank as, in painting, the works of the Dutch masters do as compared with the lofty spirits of the Romans—precisely for this reason, that while similar subjects are not only fit, but often felicitous, subjects for the pencil, they are altogether improper objects of sculptural representation.
Though, from the circumstance of being the principals in the composition, and from the intrinsic excellence of their conception, these two figures have chiefly occupied the public attention, they ought not to induce forgetfulness of the artist's other labors. These, besides the Landlord and his mate, consist of several1copies, in various sizes, of this original group, and of numerous sculptures, of different character and purpose, from a "head-stane" upwards, executed by Mr. Thom, since his residence in Ayr as a professional stone-cutter. Here his studio is the resort of all intelligent strangers who visit this ancient and beautiful burgh; while his modest manners, and moral worth have conciliated the respect of every one. The character of the Landlady is well sustained, as the buxom bustling head of a well frequented "change-house." Her lord and master, on the other hand, is represented as one who has little to say in his own house, and better qualified to drink, than to earn his pint. The former seems by no means disinclined to reciprocate glances with Tam; while the latter is so convulsed with laughter at the Souter's stories, as to be hardly capable of maintaining the equipoise of the foaming tankard in his hand. Neither, however, is equal in graphic truth and humor to their two companions. A more gigantic, but by no means so happy a work, is the statue of the Scottish patriot, lately placed in the niche of the New Tower, just erected in Ayr, on the site of the ancient "Wallace Tower" of Burns. In fact, we regard this figure as nearly a failure. It possesses neither the truth of nature, nor the dignity of ideal representation. Omitting others of less moment, we shall pass to the most perfect of all Mr. Thom's works—the figure of "Old Mortality." This, though only a model, and not yet, we believe, even commissioned in stone, offers by far the most striking evidence of genius in its author.2The costume, attitude, and expression of the old man, as he is represented sitting upon a grave-stone, which he has been occupied in cleaning, are most admirable; and perhaps no artist ever more completely realized the exquisite conception of the original mind. The history of this composition supplies a striking instance of the power of genius over spirits of a congenial stamp, and of the singular coincidences which sometimes take place in its manner of conceiving the same sentiment. During a voyage to London, in a Leith steam packet, Mr. Thom one day found in the cabin, Sir Walter's delightful tale of Old Mortality, which he had never read. Taking it up, he quickly became entirely engrossed in the narrative. The description of the old man, to whom posterity is indebted for many a record, else lost, of our single-minded sufferers for conscience' sake—so fixed itself upon the artist's imagination, that he instantly conceived the idea of representing it in sculpture. By way of concentrating his thoughts, he sketched a figure in the imagined attitude, on one of the boards of the book he had been reading. Pleased with his idea, he transferred it to his pocket-book. A few days after his arrival in London, he was introduced to our celebrated countryman, Wilkie, who, with his accustomed kindness, showed him his portfolios. Mr. Thom's surprise may be imagined, when in one of these he found a sketch of Old Mortality, almost identical with his own, executed by Wilkie several years before. The same thought had struck both, and almost in the same manner.
1There are now five sets; three of which are the size of life, and two, four and twenty inches high. One set is, or is to be deposited at the temple called the tomb of Burns, in Ayrshire.—Another belongs to Lord Cassili. The third is in this country.
2Since the above has been published, Thom has nearly finished his Old Mortality in a block too small for his conception, and which will oblige him to execute an entirely new figure.
[We extract the following affecting story from the "Western Monthly Magazine." Though written in the form of romantic narrative, it presents one of the strongest cases we recollect to have seen, in which innocence is overborne by powerful but false appearances of guilt. It is certainly a strong illustration of the danger of convicting a fellow creature, upon what is technically calledpresumptive evidence, a topic upon which the gentlemen of the bar are furnished with as wide a field for the display of professional ingenuity, as upon any other in the whole compass of jurisprudence. That it is often safe, and indispensably necessary however to rely upon such kind of evidence, is so obvious in itself—and so well established as a legal maxim—that the danger of sometimes convicting, upon a train of specious but deceptive circumstances, is less than the evil of acquittal in the absence of positive, conclusive, and infallible testimony.]
A TALE FOUNDED ON FACT.
A TALE FOUNDED ON FACT.
The circumstances which I am about to relate, are familiar to many now living. In some particulars I have varied from the truth; but if in the relation of an event which excited intense interest, at the time of its occurrence, I shall succeed in impressing upon any one, the delusive character of circumstantial evidence, my object will be attained.
Beneath the magnificent sycamores which bordered a lovely stream in the southwest part of Kentucky, a company of emigrants had pitched their encampment, for the night. The tents were set up, the night-fire threw its gleam upon the water, the weary horses were feeding, the evening repast was over, and preparations were made for repose. The party consisted of three brothers, with their families, who were wending their way to the new lands of the distant Missouri. On their visages, where the ague had left the sallow traces of its touch, few of the nobler traits of the human character were visible. Accustomed to reside upon the outskirts of society, little versed in its forms, and as little accustomed to the restraints of law, or the duties of morality, they were the fit pioneers of civilization, because their frames were prepared for the utmost endurance of fatigue, and society was purified by their removal. Theirs were not the fearless independence, and frank demeanor which marks the honest backwoodsman of our country; but the untamed license, and the wiley deportment of violent men, who loved not the salutary influence of the law, nor mingled of choice with the virtuous of their own species.
As they stirred the expiring fires, the column of light, mingled with the smoke and cinder, that rose towards the clear sky of the mild May night, revealed two travellers of a different appearance, who had encamped on the margin of the same stream. One was a man of thirty. Several years passed in the laborious practice of medicine, in a southern climate, had destroyed his constitution, and he had come to breathe the bracing air of a higher latitude. The wing of health had fanned into new vigor the waning fires of life, and he was now returning to the home of his adoption with a renovated frame. The young man who sat by him, was a friend, to whom he had paid a visit, and who was now attending him, a short distance, on his journey. They had missed their way, and reluctantly accepted a sullen permission of the emigrants to share their coarse fare, rather than wander in the dark, through unknown forests. Hamilton, the younger of the two, was, perhaps, twenty-seven years of age—and was a young gentleman of prepossessing appearance, of cultivated mind, and of a chivalrous and sensitive disposition. His parents were indigent, and he had, by the energy of his own talents and industry, redeemed them from poverty, and placed them in easy circumstances. In one of his commercial expeditions down the Mississippi, he had met with Saunders, the physician. An intimacy ensued, which though brief, had already ripened into mature friendship.
Together they had hunted over the flowery barrens, and through the majestic forests of their native state—had scaled the precipice, and swam the torrent—had explored the cavern, and visited whatever was wonderful or curious in the region around them; and both looked forward, with painful feelings, to the termination of an intercourse which had been pleasing and instructive.—As they were to separate in the morning, the evening was spent in conversation—in that copious and involuntary flow of kindness and confidence which the heart pours out at the moment when friends are about to sever, when the past is recalled and the future anticipated, and friendship no longer silent, nor motionless, displays itself like the beauty of the ocean wave, which is most obvious at the moment of its dissolution.
Early in the morning, the two friends prepared to pursue their journey. As they were about to depart, one of the emigrants advanced towards them, and remarked:
'I reckon, strangers, you allow to encamp at Scottville to-night?'
'Yes,' said Saunders, 'I do.'
'Well, then, I can tell you a chute, that's a heap shorter than the road you talk of taking—and at the forks of Rushing river, there's a smart chance of blue clay, that's miry like, and it's right scary crossing at times.'
Supposing they had found a nearer and better road, and one by which a dangerous ford would be avoided, they thanked their informant, and proceeded on their journey.
In some previous conversations, Saunders had learned, that his friend had recently experienced some heavy losses, and was at this time much pressed for money, and wishing to offer him assistance, had from time to time deferred it, from the difficulty of approaching so delicate a subject. As the time of parting approached, however, he drew the conversation to that point, and was informed that the sum of five hundred dollars, would relieve his friend from embarrassment. Having a large sum in his possession, he generously tendered him the amount required, and Hamilton, after some hesitation, accepted the loan, and proposed to give his note for its repayment, which Saunders declined, under the plea that the whole transaction was a matter of friendship, and that no such formality was requisite. When they were about to part, Hamilton unclasped his breast-pin, and presented it to his friend. 'Let this,' said he, 'remind you sometimes of Kentucky—I trust, that when I visit you next year, I shall not see it adorning the person of some favored fair one.' 'I have not so much confidence in you,' laughingly returned the other; and, handing him a silver-hafted penknife curiously embossed, 'I am told that knives and scissors are not acceptable presents to the fair, as they are supposed to cut love, so I have no fear that Almira will get this—and I know that no other human being would cause you to forget your friend.' They then parted.
As Hamilton was riding slowly homeward, engaged in thought, and holding his bridle loosely, a deer sprang suddenly from a thicket, and fell in the road, before his horse, who started and threw him to the ground. In examining the deer, which had been mortally wounded, and was still struggling, some of the blood was sprinkled on his dress, which had been otherwise soiled by his fall. Paying little attention to these circumstances, he returned home.
Though his absence had been brief, many hands grasped his in cordial welcome, many eyes met his own in love, for few of the young men of the county were so universally beloved, and so much respected as Hamilton. But to none was his return so acceptable as to Almira ——. She had been his playmate in infancy, his schoolmate in childhood, in maturer years their intimacy had ripened into love, and they were soon to be united in the holiest and dearest of ties. But the visions of hope were soon to pass from before them, as themirageof the desert, that mocks the eye of the thirsty traveller, and then leaves him a death-devoted wanderer on the arid waste.
A vague report was brought to the village, that the body of a murdered man was found near Scottville. It was first mentioned by a traveller, in a company where Hamilton was present; and he instantly exclaimed, 'no doubt it is Saunders—how unfortunate that I left him!' and then retired under great excitement. His manner and expressions awakened suspicion, which was unhappily corroborated by a variety of circumstances, that were cautiously whispered by those, who dared not openly arraign a person whose whole conduct through life had been honest, frank, and manly. He had ridden away with Saunders, who was known to have been in possession of a large sum of money. Since his return, he had paid off debts to a considerable amount. The penknife of Saunders was recognized in his hands—yet none were willing, on mere surmise, to hazard a direct accusation.
The effect of the intelligence upon Hamilton was marked. The sudden death of a dear friend is hard to be supported—but when one who is loved and esteemed, is cut off by the dastardly hand of the assassin, the pang of bereavement becomes doubly great, and in this instance, the feelings of deep gratitude which Hamilton felt towards his benefactor, caused him to mourn over the catastrophe, with a melancholy anguish. He would sit for hours in a state of abstraction, from which even the smile of love could not awaken him.
The elections were at hand; and Hamilton was a candidate for the legislature. In the progress of the canvass, the foul charge was openly made, and propagated with the remorseless spirit of party animosity. Yet he heard it not, until one evening as he sate with Almira, in her father's house. They were conversing in low accents, when the sound of an approaching footstep interrupted them, and the father of Almira entered the room. 'Mr. Hamilton,' said he, 'I am a frank man—I consented to your union with my daughter, believing your character to be unstained—but I regret to hear that a charge has been made against you, which, if true, must render you amenable to the laws of your country. I believe it to be a fabrication of your enemies—but, until it shall be disproved, and your character as a man of honor, placed above suspicion, you must be sensible that the proposed union cannot take place, and that your visits to my house must be discontinued.'
'What does my father mean?' inquired the young lady, anxiously, as her indignant parent retired.
'I do not know,' replied the lover, 'it is some electioneering story, no doubt, which I can easily explain. I only regret that it should give him, or you, a moment's uneasiness.'
'It shall cause me none,' replied the confiding girl: 'I cannot believe any evil of you.'
He retired—sought out the nature of the charge, and to his inexpressible astonishment and horror, learned that he was accused of the murder and robbery of his friend! In a state little short of distraction, he retired to his room, recalled with painful minuteness all the circumstances connected with the melancholy catastrophe, and for the first time, saw the dangerous ground on which he stood. But proud in conscious innocence, he felt that to withdraw at that stage of the canvass, might be construed into a confession of guilt. He remained a candidate, and was beaten. Now, for the first time, did he feel the wretchedness of a condemned and degraded man. The tribunal of public opinion had pronounced against him the sentence of conviction; and even his friends, as the excitement of the party struggle subsided, became cold in his defence, and wavering in their belief of his innocence. Conscious that the eye of suspicion was open, and satisfied that nothing short of a public investigation could restore him to honor, the unhappy young man surrendered himself to the civil authority, and demanded a trial. Ah! little did he know the malignity of man, or the fatal energy of popular delusion! He reflected not that when the public mind is imbued with prejudice, even truth itself ceases to be mighty. Many believed him guilty, and those who, during the canvass, had industriously circulated the report, now labored with untiring diligence to collect and accumulate the evidence which should sustain their previous assertions. But arrayed in the panoply of innocence, he stood firm, and confident of acquittal. The best counsel had been engaged—and on the day of trial, Hamilton stood before the assembled county—an arraigned culprit in the presence of those before whom he had walked in honor from childhood.
As the trial proceeded, the confidence of his friends diminished, and those who had doubted, became confirmed in the belief of the prisoner's guilt. Trifles light as air became confirmations strong as proofs of Holy Writ to the jealous minds of the audience, and one fact was linked to another in curious coincidence, until the chain of corroborating circumstances seemed irresistibly conclusive. His recent intimacy with the deceased, and even the attentions which friendship and hospitality had dictated, were ingeniously insisted upon as evidences of a deliberate plan of wickedness—long formed and gradually developed. The facts, that he had accompanied the deceased on his way—that he had lost the path in a country with which he was supposed to be familiar—his conduct on hearing of the death of his friend—the money—the knife—caused the most incredulous to tremble for his fate. But when the breast-pin of Hamilton, found near the body of the murdered man, was produced—and a pistol, known to have been that of the prisoner, was proved to have been picked up near the same spot—but little room was left, even for charity to indulge a benevolent doubt. Nor was this all—the prosecution had still another witness—the pale girl who sate by him, clasping his hand in hers, was unexpectedly called upon to rise and give testimony. She shrunk from the unfeeling call, and buried her face in her brother's bosom. That blow was not anticipated—for none but the cunning myrmidons of party vengeance, who had even violated the sanctuary of family confidence, in search of evidence, dreamed that any criminating circumstance was in the possession of this young lady. At the mandate of the court, she arose, laid aside her veil, and disclosed a face haggard with anxiety and terror. In low tremulous accents, broken with sobs, she reluctantly deposed, that the clothes worn by her brother, on his return from that fatal journey, were torn, soiled with earth, and bloody! An audible murmur ran through the crowd, who were listening in breathless silence—the prisoner bowed his head in mute despair—the witness was borne away insensible—the argument proceeded, and after an eloquent, but vain defence, the jury brought in a verdict ofguilty!The sentence ofdeathwas passed.
* * * * *
The summer had passed away. The hand of autumn had begun to tinge with mellow hues the magnificent scenery of the forest. It was evening, and the clear moonbeams were shining through the grates of the prisoner's cell. The unhappy man, haggard, attenuated, and heart-broken, was lying upon his wretched pallet, reflecting alternately upon the early wreck of his bright hopes, the hour of ignominy that was just approaching, and the dread futurity into which he should soon be plunged. It was the season at which his marriage with Almira was to have been solemnized. With what pride and joy had he looked forward to this hour! And now, instead of the wedding festivities, the lovely bride, and the train of congratulating friends, so often pictured in fancy, he realized fetters, a dungeon, and a disgraceful death! The well-known tread of the jailer interrupted the bitter train of thought. The door opened, and as the light streamed from a lantern across the cell, he saw a female form timidly approaching. In a moment Almira had sunk on her knees beside him, and their hands were silently clasped together. There are occasions when the heart spurns all constraint, and acts up to its own dictates, careless of public opinion, or prescribed forms—when love becomes the absorbing and overruling passion—and when that which under other circumstances would be mere unlicensed impulse, becomes a hallowed and imperious duty. That noble-hearted girl had believed to the last, that her lover would be honorably acquitted. The intelligence of his condemnation, while it blighted her hopes, and withered her health, never disturbed for one moment her conviction of his innocence. There is an union of hearts which is indestructible, which marriage may sanction, and nourish, and hallow, but which separation cannot destroy—a love that endures while life remains, or until its object shall prove faithless or unworthy. Such was the affection of Almira; and she held her promise to love and honor him, whose fidelity to her was unspotted, and whose character she considered honorable, to be as sacred, as if they had been united in marriage. When all others forsook, she resolved never to forsake him. She had come to visit him in his desolation, and to risk all, to save one who was dear and innocent in her estimation, though guilty in the eyes of the world.
The jailer, a blunt, though humane man, briefly disclosed a plan, which he, with Almira, had devised, for the escape of Hamilton. He had consented to allow the prisoner to escape, in female dress, while she was to remain in his stead, so that the whole contrivance should seem to be her own. 'I am a plain man,' concluded the jailer, 'but I know what's right. It 'aint fair to hang no man on suspicion—and more than that, I am not agoing to stand in no man's way—especially a friend who has done me favors, as you have. I go in for giving every fellow a fair chance. The track's clear, Mr. Hamilton, and the quicker you put out, the better.'
To his surprise, the prisoner peremptorily refused the offer.
'I am innocent,' said he; 'but I would suffer a thousand deaths rather than injure the fair fame of this confiding girl.'
'Go, Dudley—my dear Dudley,' she sobbed: 'for my sake, for the sake of your broken-hearted father and sister—'
'Do not tempt me—my dear Almira. I will not do that which would expose you to disgrace.'
'Oh, who would blame me?'
'The world—the uncharitable world—they who believe me a murderer, and have tortured the most innocent actions into proofs of deliberate villainy, will not hesitate to brand you as the victim of a cold-blooded felon. And why should I fly? to live a wretched wanderer, with the brand of Cain on my forehead, and a character stamped with infamy?'—
He would have said more—but the form, that during this brief dialogue, had sunk into his arms, was lying lifeless on his bosom. He kissed her cold lips, and passionately repeated her name—but she heard him not—her pure spirit had gently disengaged itself, and was flown forever. Her heart was broken. She had watched, and wept, and prayed, in hopeless grief, until the physical energies of a delicate frame were exhausted: and the excitement of the last scene had snapped the attenuated thread of life.
Hamilton did not survive her long. His health was already shattered by long confinement, and the chaffing of a proud spirit. Almira had died for him—and his own mother—oh! how cautiously did they whisper the sad truth, when he asked whyshewho loved him better than her own life, had forsaken him in the hour of affliction—she, too, had sunk under the dreadful blow. His father lived a withered, melancholy man, crushed in spirit; and as his sister hung like a guardian angel over his death-bed, and he gazed at her pale, emaciated, sorrow-stricken countenance, he saw that she, too, would soon be numbered among the victims of this melancholy persecution. When, with his last breath, he suggested that they would soon meet, she replied: 'I trust that God will spare me to see your innocence established, and then will I die contented.' And her confidence was rewarded—for God does not disappoint those who put their trust in him. About a year afterwards, a wretch, who was executed at Natchez, and who was one of the three persons named in the commencement of this narrative, confessed that he had murdered Saunders, with a pistol which he had found at the place where the two friends had slept. 'I knew it would be so,'—was the only reply of the fast declining sister—and soon after she was buried by the side of Dudley and Almira.—Reader, this is not fiction—nor are the decisions of God unjust—but his ways are above our comprehension.
EMILLION.
A Lecture on the Study of the Law; being an Introduction to a course of lectures on that subject, in the College of William and Mary, by Beverley Tucker, Professor of Law.—Richmond: T. W. White. Nov. 1834.
It is impossible for a Virginian not to feel an interest in old William and Mary. Recollecting the many able men who have been nurtured within its walls, and signalized as lawyers, legislators and statesmen, we cannot but feel gratified at every effort in its behalf that promises to be of use. From the time of Judge Semple's last appointment as Judge of the General Court, until the month of July, the law chair had remained vacant. A vacancy in so important a department continuing for so long a period, could not fail to be prejudicial to the institution. It was in vain that the other professorships were ably filled. The circumstance of the lectures in the law department being suspended, made many fear that the other professorships would one by one share the same fate—that this vacancy was but a precursor to others—that a failure to fill this would be followed by like failures hereafter—and that in a few years the doors of this venerable pile would be closed. These inferences are strengthened by the fact, that a very important professorship (the professorship of mathematics) had formerly been permitted to remain vacant for even a longer period than that which is the subject of these brief reflections. With such anticipations, it is no wonder that every class has latterly been characterized by the smallness of its numbers.
The Board of Visiters, at their meeting in July, resolved that the vacancy should continue no longer, and conferred the appointment of law professor upon Beverley Tucker. Mr. Tucker is well known as a writer upon constitutional questions, and his appointment to the bench of another state, after a short residence in it, affords evidence of the estimation in which his legal attainments were there held. The same professorship to whichheis now appointed, was filled many years ago by his fatherSt. George Tucker, whose edition of Blackstone's Commentaries, and subsequent appointment first in the state and then in the federal judiciary, have given him a reputation with members of the bar throughout the Union.
The letter and answer which precede the introductory lecture of Professor Tucker, sufficiently explain the circumstances under which that lecture is published.
Williamsburg, October 27, 1834.
Dear Sir:—The students of William and Mary, highly gratified by your able and eloquent address, delivered before them this day, have held a special meeting, and by unanimous vote adopted the following resolution:
Resolved, (At a meeting of the students in the large lecture room on the 27th inst.) That a committee be appointed to address a note to Professor Tucker, for the purpose of expressing their admiration of the able and interesting lecture which he has this day delivered, introductory to his course on law, and to solicit the same for publication.
We hope for your assent to this request, and in performing this agreeable duty, we tender you our sentiments of respect and esteem.
Committee.
Professor Tucker.
Williamsburg, October 28, 1834.
Gentlemen:—I acknowledge the receipt of your polite note, and am happy to comply with the request which it conveys. Identified with the College of William and Mary by the early recollections and warm affections of youth, I have nothing so much at heart as a desire to be found worthy to aid in restoring that venerable institution to all its former prosperity and usefulness. Your approbation is dear to me, as encouraging a hope that my efforts may not be unavailing. If I shall be so fortunate as to send out into the world but one more, to be added to the list of illustrious men, who are every where found upholding, with generous, devoted and enlightened zeal, the free institutions inherited from our fathers, in their true spirit, I shall have my reward. If I can succeed in impressing on my class the conviction, that freedom has its duties, as well as its rights, and can only be preserved by the faithful discharge of those duties, I shall have my reward. If I can do no more than to furnish to the profession members devoted to its duties, and qualified to sustain its high character for intelligence and integrity, by diligence and fidelity even in its humblest walks, I shall still have my reward. In either case I shall have rendered valuable service, to you, to this venerable institution, to this scene of my earliest, happiest and best days, and to Virginia—my mother—the only country to which my heart has ever owned allegiance. Far as my feet have wandered from her soil, my affections have always cleaved to her, and as the faithful mussulman, in every clime, worships with his face towards the tomb of his prophet, so has my heart ever turned to her, alive to all her interests, jealous of her honor, resentful of her wrongs, partaking in all her struggles, exulting in her triumphs, and mourning her defeats. May she again erect herself to her former proud attitude and walk before the children of liberty in the pathless desert where they now wander, as a "cloud by day, and a pillar of fire by night."
For yourselves, gentlemen, and those whom you represent, be pleased to accept my acknowledgments for the compliment implied in your application. I would ask you to accept the expression of another sentiment, if I knew how to express it. Returning to Williamsburg after an absence commencing in early life, the long and dreary interval seems obliterated. I find myself remitted at once to the scenes and to the feelings of youth. It would seem more natural to me to come among you as a companion than as an instructer. But this may not be much amiss. My business is with yourheads, but the road to them is through theheart, and if I can only bring you to understand and reciprocate my feelings, there will be nothing wanting to facilitate the communication of any instruction I may be capable of bestowing.
I remain, gentlemen, with high regard, your friend and obedient servant,
B. TUCKER.
ToMessrs. J. W. Dew, John Murdaugh, Wm. T. French, and Chs. H. Kennedy.
YOUNGGENTLEMEN:
I gladly avail myself of an established custom, to offer some remarks on the mutual relation into which we have just entered, and the studies which will occupy our attention during the ensuing course.
This day is to you the commencement of the most important æra of life. You have heretofore been engaged in studies, for the most part useful, but sometimes merely ornamental or amusing. The mind, it is true, can hardly fail to improve, by the exertion necessary to the acquisition of knowledge of any kind, even as the athletic sports of the boy harden and prepare the body for the labors of the man. But, in many particulars, what you have heretofore learned may be of little practical value in the business of life; and your past neglects may perhaps be attended with no loss of prosperity or respectability in future. Some of you are probably acquainted with sciences of which others are ignorant; but are not for that reason any better prepared for the new course of studies on which you are about to enter. Nor will such knowledge necessarily afford its possessors any advantage at the bar, or in the senate, or on any of the arenas, where the interests of individuals and nations are discussed, and the strifes of men decided. But the time is now past with you, young gentlemen, when you can lose a moment, or neglect an opportunity of improvement, without a lasting and irreparable detriment to yourselves. You this day put on thetoga virilis, and enter on thebusiness of life. This day you commence those studies on which independence, prosperity, respectability, and the comfort and happiness of those who will be dearest to you, must depend. For, trust me, these things mainly depend on excellence in the profession or occupation, whatever it may be, which a man chooses as the business of his life. The humblest mechanic will derive more of all these good things from diligence and proficiency in his trade, than he possibly can from any knowledge unconnected with it.
This, which is true of all occupations, is most emphatically true of that which you have chosen. To be eminent inourprofession is to hold a place among the great ones of the earth; and they, who devote themselves to it, have the rare advantage of treading the path which leads to the highest objects of honorable ambition, even while walking the round of daily duties, and providing for the daily wants of private life. The history of our country is full of proof that the bar is the road to eminence; and I beg you to remark how few of its members have attained to this eminence in public life, without having been first distinguished in the profession. To winitshonors, and to wear them worthily, is to attain an elevation from which all other honors are accessible: but to turn aside disgusted with its labors, is to lose this vantage ground, and to sink again to the dead level of the common mass. You should therefore learn to look on the profession of your choice, as the source from whence are to flow all the comforts, the honors, and the happiness of life. Let it be as a talisman, in which, under God, you put your trust, assuring yourselves that whatever you seek by means of it you will receive.
I have the more naturally fallen into these remarks, as they are in some sort suggested, and are certainly justified by the history of this institution. If you trace back the lives of the men, who at this moment occupy the most enviable pre-eminence in your native state, you will find that they received the rudiments of their professional and political education at this venerable but decayed seminary. There are certainly distinguished members of the profession, and illustrious men out of the profession, to whom this remark does not apply. But when Virginia (Magna Parens Virum,) is called on to show her jewels, to whom does she more proudly point than to men who once occupied those very seats; who here received the first impulse in their career; who here commenced that generous strife for superiority which has placed them all so high.
The subject of our researches, young gentlemen, will be the municipal law of Virginia. The text book which will be placed in your hands is the American edition of Blackstone's Commentaries, published thirty years ago by one of my predecessors in this chair. You will readily believe that it would be my pride to walk, with filial reverence by the lights which he has given us, and that, in doing so, I should feel secure of escaping any harsh animadversion from those to whom I am responsible, and who still cherish so favorable a recollection of his services. I shall certainly endeavor to avail myself of this privilege; though it may be occasionally necessary to assume a more perilous responsibility. A brief sketch of the plan which I propose to myself, will show you how far I shall follow, and wherein, and why, I shall deviate from the path which he has traced.
Municipal law is defined by Mr. Blackstone, "to be a rule of civil conduct prescribed by the supreme power of the state." By Justinian it is said, "Id quod quisque populus sibi jus constituit, vocatur jus civile:" which has been well rendered thus: "It is the system of rules of civil conduct which any state has ordained for itself."
Whatever definition we adopt, we shall find that municipal law is distinguishable into four grand divisions, which may be properly designated by the following description:
1. That which regulates the nature and form of the body politic; which establishes the relation that each individual bears to it, and the rights and duties growing out of that relation, which determines the principles on which it exercises authority over him; and settles a system of jurisprudence by which it operates to protect and enforce right, and to redress and punish wrong.
2. That which determines the relations of individual members of society to each other; which defines the rights growing out of that relation; and regulates the right of property, and such personal rights as must subsist even in a state of nature.
3. That which defines the wrongs that may be done by one individual member of society to another, in prejudice of his rights, whether of person or property, and provides means for preventing or redressing such wrongs.
4. That which defines and denounces the wrongs which may be done by any individual member of society, in violation of the duties growing out of his relation to the body politic, and provides means for preventing and punishing such violation.
The first of these divisions is treated by Mr. Blackstone in his first book, under the comprehensive head of "The Rights of Persons." Under the same head he includes so much of the second division as relates to such personal rights as must have belonged to man in a state of nature, and such as grow out of his relation to other individual members of society. Such are therelativerights of husband and wife, parent and child, guardian and ward, and master and servant—and theabsoluterights, of personal liberty, and of security to life, limb and reputation. These rights are obviously not the creatures of civil society, however they may be regulated and modified by municipal law. They in no wise depend on "the nature or form of the body politic;" nor on "the relations which individuals bear to it;" nor on "the rights and duties growing out of that relation;" nor on "the principles on which it exercises authority over individuals;" nor on "the system of jurisprudence."
As little indeed do they depend on "the rights of property," but they have much in common with them. Together with them, they collectively form the mass of "individual rights," as contradistinguished from "political rights." Neither class derives its existence from civil society, although both are alike liable to be regulated by it, and the two together form the subject of almost all controversies between man and man. Now with rights in actual and peaceable enjoyment, law has nothing to do. It is controversy which calls it into action; and as both this class of personal rights, and the rights of property, have the same common origin—both subsisting by titles paramount to the constitutions of civil society; as both are the ordinary subjects of controversy between individuals; and as these controversies are all conducted according to similar forms, decided by the same tribunals, and adjusted by the like means,—it is found convenient to arrange them together in a course of instruction. Such I believe has always been the practice in this institution. Proposing to conform to it, I have thought it best, in the outset, to intimate this slight difference between this practice and Mr. Blackstone's arrangement.
There is another particular in which Mr. Blackstone's order of instruction has been advantageously changed at this place. His is certainly the truephilosophicalarrangement of the subject. When we are told that "municipal law is a rule of civil conduct prescribed by the supreme power in the state," it is obvious to ask, "what is that supreme power, and whence comes its supremacy?" When we are told that it is "the system of rules of civil conduct, which the state has ordained for itself," the first inquiry is, "what is the state?" Thus whatever definition of municipal law we adopt, the subject of inquiry that meets us at the threshold is theLex Legum;the law which endues the municipal law itself with authority.
If the individual to be instructed were one who had heretofore lived apart from law and government, yet capable (if such a thing were possible) of understanding the subject, it is here we ought to commence. To him it would be indispensable to explain, in the first instance, the structure of the body politic; to specify the rights surrendered by individuals; and to set before him the equivalent privileges received in exchange.Wetoo might be supposed to require a like exposition before we would be prepared to submit to the severe restraints and harsh penalties ofcriminallaw. But in regard to controversies between individuals we feel no such jealousies. In these, the law, acting but as an arbiter, indifferent between the parties, no question concerning its authority occurs to the mind. The readiness with which we acquiesce in its decisions, is strikingly manifested in the fact, that the whole of England, Ireland and the United States are, for the most part, governed by a law which has no voucher for its authority but this acquiescence. The same thing may be said of the authority of the civil law on the continent of Europe. It thus appears that the mind does not always require to be informed of the origin of the law which regulates and enforces, or protects individual rights, before it will condescend to inquire what are its behests.Prima facieit should be so; but being, in point of fact, born in the midst of law, habituated to it from our infancy, and accustomed to witness uniform obedience to its authority on the part of those whom we were taught to obey, we learn to regard it as a thingin rerum natura, rather than of human invention; a sort of moral atmosphere, which, like that we breathe, seems a very condition of our existence.
There is therefore no inconvenience to be apprehended from taking up the subject in an inverted order, treating first of individual rights, and reserving those that grow out of the relation of the citizen to the body politic, and the correlative duties of that relation, for future inquiry.
While there is nothing to be objected to this arrangement, there is much in favor of it. It is important that they who engage in the study of political law, should come to the task with minds prepared for it; well stored with analogous information, and sobered and subdued by the discipline of severe investigation. There is a simplicity in some views of government which is apt to betray the student into a premature belief that he understands it thoroughly; and then, measuring the value of his imagined acquirements, not by the labor that they have cost him, but by the dignity and importance of the subject, he becomes inflated, self-satisfied and unteachable; resting in undoubting assurance on the accuracy and sufficiency of such bare outline as his instructer may have thought proper to place before him. But in those countries where the authority of government rests on a questionable title, they who are entrusted with the education of youth, may naturally wish to keep them from looking into it too narrowly. Hence it may be a measure of policy with them, to introduce the student, in the first place, to the study of political law, in the hope of making on his raw and unpractised mind, such an impression, as may secure his approbation of the existing order of things. The faculty of investigating legal questions, and forming legal opinions, may almost be regarded as an acquired faculty; so that, in the earlier part of his researches, the student necessarily acquiesces in the doctrines which are pronouncedex cathedraby his teacher. At this time he readily receives opinions on trust; and if it be his interest to cherish them, or if he is never called on in after life to reexamine them, he is apt to carry them with him to the grave. This is perhaps as it should be in England and other countries of Europe. Having no part in the government, it may be well enough that he should learn to sit down contented with this sort of enlightened ignorance.
But with us the case is different. The authority of our governments is derived by a title that fears no investigation. We feel sure, that, the better it is understood, the more it will be approved. It rests too on a charter conferring regulated and limited powers; and the well being of the country requires that the limitations and regulations be strictly observed. Now every man among us has his "place in the commonwealth." It is on the one hand, the duty of every man to aid in giving full effect to all legitimate acts of government; and on the other, to bear his part in restraining the exercise of all powers forbidden or not granted. Every man therefore owes it to his country to acquire a certain proficiency in constitutional law, so as to act understandingly, when called on to decide between an alleged violation of the constitution, and an imputed opposition to lawful authority. Such occasions are of daily occurrence. Scarcely a day has passed, since the adoption of the federal constitution, when some question of this sort has not been before the public. Such is the effect of that impatience of restraint natural to man. So prompt are the people to become restive under laws of questionable authority, and so apt are rulers to strain at the curb of constitutional limitations, that one or the other, or both of these spectacles, is almost always before us.
When you come then, young gentlemen, to the study of political and constitutional law, you will find it no small advantage to have been engaged for some months before in studies of a similar character. The opinions you will then form will be properly your own. I may not be so successful as I might wish, in impressing you with those I entertain; but I shall be more gratified to find you prepared to "give a reason for the faith that is in you," whatever that faith may be, than to hear you rehearse, by rote, any political catechism that I could devise. I shall accordingly postpone any remarks on constitutional and political law, until your minds have been exercised and hardened by the severe training they will undergo in the study of the private rights of individuals, of wrongs done in prejudice of such rights, and of the remedies for such wrongs. All these topics are embraced in the second and third division of municipal law, that I have laid before you.
To these belong the most intricate and difficult questions in the science of law. In introducing you to the study of these, let me say, in the language of one from whom I am proud to quote, that, "I cannot flatter you with the assurance that 'your yoke is easy and your burden light.' I will not tell you that your path leads over gentle ascents and through flowery meads, where every new object entices us forward, and stimulates to perseverance. By no means! The task you have undertaken is one of the most arduous; the profession you have chosen one of the most laborious; the study you are about to pursue, one of the most difficult that can be conceived. But you have made your election. You have severed yourselves from the common herd of youth, who shrink from every thing that demands exertion and perseverance. You have chosen between the allurements of pleasure and the honors which await the disciples of wisdom. You yield to others to keep the noiseless tenor of their way in inglorious ease. You have elected for yourselves the path that philosophers and moralists represent as leading, up a rugged ascent, to the temple of fame. It may be the lot of some of you to elevate yourselves by talents and unabating zeal, in the pursuit you have selected. But these distinguished honors are not to be borne away by the slothful and inert.Nulla palma sine pulvere. He who would win the laurel, must encounter the sweat and toil of thearena. Nor will it suffice that heoccasionallypresses on to the goal. If he slackens in his efforts he must lose ground. We roll a Sisyphean stone to an exalted eminence. He who gives back loses what his strength had gained; and sinking under the toil his own indolence increases, will at length give up his unsteady efforts in despair."—1. T. C. Introduction, p. vi.
I can add nothing to these striking remarks but my testimony to their truth. There is, perhaps, no study that tasks the powers of the mind more severely than that of law. In it, as in the study of mathematics, nothing is learned at all that is not learned perfectly; and a careless perusal of Euclid's elements would not be more unprofitable, than that of a treatise on the laws of property. Nor will a mere effort of memory be of more avail in the one case than in the other. Both must be remembered by being understood; by being through the exercise of intense thought, incorporated as it were into the very texture of the mind. To this end its powers must be fully and faithfully exerted. As, in lifting at a weight, you do but throw away your labor, until you man yourself to the exertion of the full measure of strength necessary to raise it; so, in this study, you may assure yourselves that all you have done is of no avail, if you pass from any topic without thoroughly understanding it. And let no man persuade you that genius can supply the place of this exertion. Genius does not so manifest itself. The secret of its wonderful achievements is in the energy which it inspires. It is because its prompting sting, like the sharp goad of necessity, urges to herculean effort, that it is seen to accomplish herculean tasks. He is deceived who fancies himself a favored child of genius, unless he finds his highest enjoyment in intellectual exercise. He should go to the toil of thought like the champion to the lists, seeking in the verycertaminis gaudiathe rich reward of all his labors.
There may be something startling, I fear, in this exhibition of the difficulties that lie before you, and it is proper to encourage you by the assurance that by strenuous effort they may be certainly overcome. Remember too that this effort will be painful only in the outset. The mind, like the body, soon inures itself to toil, and wears off the soreness consequent on its first labors. When this is done, the task becomes interesting in proportion to its difficulty, and subjects which are understood without effort, and which do not excite the mind to thought, seem flat and insipid.
But lest the student should falter and give back in his earlier struggles, it is the duty of the teacher to afford him such aids as he can. This is mainly to be done by means of such an analysis and arrangement of the subject as may prevent confusion, and consequent perplexity and discouragement.
There are two sorts of analysis, each proper in its place. The onephilosophical, by which the different parts of a subject are so arranged, as to exhibit in distinct groups those things that depend on the same or like principles, and such as are marked by characteristic points of resemblance; giving a sort of honorary precedence to the most important. The other sort of analysis may be termedlogical. It is that method by which different propositions are so arranged, as that no one of them shall ever be brought under consideration, until all others which may be necessary to the right understanding of that one, have been established and explained. Of this last description sire Euclid's elements, in which it is interesting to observe that no one proposition could with propriety be made to change its place; each one depending for its demonstration, directly or indirectly, upon all that have gone before.
Blackstone's Commentaries may be cited as an example ofphilosophicalanalysis. He has indeed been careful to avoid perplexing his reader, through the want of a strictlylogicalarrangement, by dealing chiefly in generalities, and never descending to such particulars as might be unintelligible for want of a knowledge of matters not yet treated of. This I take to be the reason why his work has been characterized as being "less an institute of law, than a methodical guide or elementary work adapted to the commencement of a course of study. He treats most subjects in a manner too general and cursory to give the student an adequate knowledge of them. After having pursued his beautiful arrangement, he is obliged to seek elsewhere for farther details. After having learnt the advantage of system, he is almost at the threshold of the science, turned back without a guide, to grope among the mazy volumes of our crowded libraries. This cannot be right. If system is of advantage at all, it is of advantage throughout. Were it practicable, it would be better for the student to have a single work, which embracing the whole subject, should properly arrange every principle and every case essential to be known preparatory to his stepping on thearena. Much, very much indeed, would still be left to be explored in the course of his professional career, independent of theapices juris, which the most vigorous and persevering alone can hope to attain."—Tucker's Commentary, Introduction, p. 4.
The justice of these remarks none can deny. It might be thought unbecoming in me to say how much the writer from whom I quote them has done to supply such a work as he describes. Yet I cannot suffer any feeling of delicacy to restrain me from the duty of recommending that work to your attentive perusal. I shall eagerly, too, avail myself of his permission to make frequent use of it, as I know of no book which so well supplies the necessary details to parts of the subject of which Mr. Blackstone has given only loose and unprofitable sketches. It is to be lamented that in doing this he has so strictly bound himself to the arrangement of that writer. That arrangement, as I have remarked, imposed on Mr. Blackstone the necessity of being occasionally loose and superficial. For want of one more strictly logical, the Virginia Commentator often finds it impossible to go into the necessary detail, without anticipating matters which properly belong to subsequent parts of his treatise; and too often, where this is impracticable, topics and terms are introduced, the explanation of which is, perhaps, deferred to the next volume.
An instance will illustrate my meaning:—Mr. Blackstone classes remedies for private wrongs, thus: "first, that which is obtained by themere actof the parties themselves; secondly, that which is effected by themere actand operation oflaw;and thirdly, that which arises fromsuitoractionin courts." Now, it probably occurred to him, that he could not go into details on the two first of these three heads, without presenting ideas which would be unintelligible to any who had not already studied the third. In striving to avoid this, he has touched so lightly upon the other two, that his remarks on the important subjects of distress and accords, which come under the first head, leave the student nearly as ignorant as they found him. For this there was no real necessity, as a knowledge of the two first heads is by no means necessary, or indeed at all conducive to the right understanding of the third. Had the pride of philosophical analysis, and symmetry of arrangement, been sacrificed to the laws of logic and reason, there was nothing to forbid the introduction of treatises on these important topics, as copious and elaborate as those supplied by the diligence and research of the Virginia Commentator. The manner in which this has been done, has made it manifest how unfavorable the arrangement of Mr. Blackstone sometimes is to amplification and minuteness. The essays of the President of the Court of Appeals on distresses and accords, leave nothing to be desired. Yet no one can read them profitably without having first studied the law of remedies by suit or action.
These, and some other instances of the same sort, have led me to this determination. Wishing to avail myself of the labors of the Virginia Commentator, without losing the benefit of Mr. Blackstone's analysis, I propose to preserve the latter, but to make occasional changes in his arrangement, substituting one more logical, though perhaps less philosophical. This, and the postponement of the study of political law, are the only liberties I propose to take. The fourth division, which relates to crimes and punishments, will be the last considered. This will be done not only in a spirit of conformity to Mr. Blackstone's plan, but also because one of the most important branches of criminal law has reference to an offence of which no just idea can be formed without a previous and diligent study of the Constitution and of the science of government.
This last mentioned subject, young gentlemen, I should perhaps pass over but lightly, were I free to do so, contenting myself with a passing allusion to its connexion with the study of the law, and the encouragement you should derive from the honorable rewards that await distinguished merit in our profession. But this is not a mere school of professional education, and it is made my duty, by the statutes of the College, to lecture especially on the constitution of this state and of the United States. In the discharge of this duty it may be necessary to present views more important to the statesman, than to the mere practitioner. When I think of the difficulty and high responsibility attending this part of my task, I would gladly escape from it; but considerations of its importance and of the benefit to the best interests of our country which has heretofore resulted from its faithful execution, come in aid of a sense of duty, and determine me to meet it firmly and perform it zealously.
The mind of the student of law is the ground in which correct constitutional opinions and sound maxims of political law should be implanted. The study of the common law involves the study of all the rights which belong to man in a state of society. The history of the common law is a history of the occasional invasions of these rights, of the struggles in which such invasions have been repelled, and of the securities provided to guard against their recurrence. A mind thoroughly acquainted with the nature and importance of the writ ofhabeas corpus, and the trial by jury, and rightly understanding the indestructible character of the right of private property, will hardly fail to be awake to any attack which may be aimed at liberty from any quarter. Hence liberty finds in the students of the law a sort of body guard. Their professional apprenticeship serves as a civil polytechnic school, where they are taught the use of weapons to be wielded in her defence. The history of our country from the first dawning of the revolution is full of proofs and examples of this. The clear view of the rights of the colonies which led to the Declaration of Independence, was one which hardly any but lawyers could have taken, and of the accuracy of which none but lawyers could have been sure. It was from them the ball of the revolution received its first impulse, and under their guidance it was conducted to the goal. Some few others were placed forward by circumstances; but they soon fell back, or found their proper place of service in the field; leaving the great cause to be managed by those whose studies qualified them to know where to insist, and where to concede; when to ward, and when to strike. The state papers emanating from the first congress will, accordingly, be found worthy to be compared with the ablest productions of the kind recorded in history; displaying an ability, temper, and address, which prepares the reader to be told that a large majority of the members of that body were lawyers.
In Mr. Blackstone's introductory lecture are some remarks on the importance of the study of the law to English gentlemen, strictly applicable to this view of the subject. "It is," says he, "perfectly amazing, that there should be no other state of life, no other occupation, art, or science, in which some method of instruction is not looked upon as necessary, except only the science of legislation, the noblest and most difficult of any. Apprenticeships are held necessary to almost every art, commercial or mechanical: a long course of reading and study must form the divine, the physician, and the practical professor of the laws: but every man of superior fortune thinks himselfborna legislator. Yet Tully was of a different opinion: 'it is necessary,' says he, 'for a senator to be thoroughly acquainted with the constitution; and this,' he declares, 'is a knowledge of the most extensive nature; a matter of science, of diligence, of reflection; without which no senator can possibly be fit for his office.'"
If the part in the government allotted to the people of England renders this admonition important to them, how much more important must it be to us, who are in theory and in factour own rulers. Not only is every office accessible to each one of us; but each, even in private life, as soon as he puts on manhood, assumes a "place in the commonwealth." In practice, as in theory, theSOVEREIGNTY OF THE STATEis in us.Born to the purple, the duties of that high destiny attach upon us at our birth; and unless we qualify ourselves to discharge them, we must cease to reproach the ignorance and folly, the passion and presumption, which so often disgrace the sovereigns of the old world, and heap wretchedness and ruin on their subjects. The same causes will have the like effects here as there. Power does not imply wisdom or justice, whether in the hands of the few or the many: and it is only by the diligent study of our duties in this important station that we can qualify ourselves so to administer its functions, as to save the free institutions inherited from our fathers, from the same reproach which the testimony of history fixes upon all other governments.
Not only is this true in reference to us as well as to the kings of the earth, but it is more emphatically true of us than of them. Whatever be their theory of sovereignty, and however they may prate aboutdivine right, they all know, and feel, that, after all, they are butkings by sufferance. They may talk of absolute sovereignty, and claim for government that sort ofomnipotencewhich is said to reside in the British parliament. But, after all, they know and feel, that there is much they cannot do, because there is much they dare not do. The course of events now passing in England is full of proof of this. We have just seen that same omnipotent parliament, new-modelling itself to suit the wishes of the people. This act indeed, was itself an exertion of this pretended omnipotence, but wisely and discreetly exercised, in surrendering power. It was certainly done with a very bad grace; and at this moment we see that body anxiously watching the temper of the multitude, and adapting its measures, not to the views of its members, not even to the views of the constituent body, but to the real or supposed interests of the great unrepresented mass. Such is the check, which in spite of all positive institutions, the physical force of numbers, however degraded, and, professedly, disregarded, must exercise over their rulers; and in this check, they find a motive to justice, forbearance, and circumspection, which, in a measure, restrains the abuse of power.
But may not we, the sovereign citizens of these states, abuse power too? When men are numerous and "strong enough to set their duties at defiance, do they cease to be duties any longer?" Does that which would be unjust as the act of ninety-nine, become just, as being the act of an hundred? Is it in the power of numbers to alter the nature of things, and to justify oppression, though it should fall on the head of only one victim? It would be easy to point to instances in which we all believe that majorities have done great wrong; and that under such wrongs we have suffered and are still suffering we all know. But where is the check on such abuse of power? Constitutional authority and physical force are both on the same side, and if thewisdomandjusticeof those who wield both does not freely afford redress, there arc no means of enforcing it. "There is no sanction to any contract against the will of prevalent power."
The justice of these ideas is recognized in the forms of all our governments. The limitations on the powers of congress and the state legislatures, are all predicated on the certain truth "that majorities may find or imagine an interest in doing wrong." Hence there are many things which cannot be lawfully done by a bare majority; and many more, which no majority, however great, is authorised to do. Two-thirds of the senate must concur in a sentence of impeachment. The life and property of an individual cannot be taken away but by the unanimous voice of his triers; and all the branches of all our governments collectively cannot lawfully enact a bill of attainder, or anex post factostatute.
But though such acts are forbidden by the constitution, they may nevertheless be passed, and judges may be found to enforce them, if those holding legislative and judicial offices shall be so minded. The constituents, too, of a majority of the legislature may approve and demand such acts. Where then is the security that such things will not be done? Where can it be but in the enlightened sense of justice and right in the constituent body?
I am not sure that such restraints on the powers of public functionaries are not even more necessary in a republican government than in any other. A king can scarcely have a personal interest in ruining one portion of his dominions for the benefit of the rest, and he would not dare to ruin the whole, while a spark of intelligence and spirit remained among the people. But in a republic, whenever the inclination and the power to do such a wrong concur, the very nature of the case secures the rulers from all fear of personal consequences. The majority is with them. Their own constituents are with them. To these is their first duty; and shall they hesitate to do that which is to benefit their constituents, out of tenderness to those who are not their constituents? We know how such questions are answered, when the occasion is one where afixed majorityhave afixed interestin the proposed wrong. Is not this the reason why legislative encroachment so much disposes men to acquiesce in executive usurpation? Is it not this, which, when the barriers of constitutional restraint are seen to fall, drives minorities,as by a sort of fatal instinct, to seek shelter under the arm of acommon master, from the all pervading tyranny of majorities exercising the power ofuniversal legislation?The wrongs of America were the act of the parliament of England, goaded on by the people. It was they who claimed a right to legislate in all things for the colonies. It was they who demanded a revenue from America; and the colonies, eagerly looking to the crown for protection, maintained an unshaken loyalty, until the king was seen to take part with their oppressors. The wrongs of Ireland are the act of the people of England. Ireland is the rival of England in agriculture, manufactures and commerce; and every concession to the former, seems to the multitude to be something taken from the prosperity of the latter. But the representation of Ireland in parliament is to that of England as one to five; and when the Irish people cry to parliament for redress, they are answeredas all appeals from minorities are answered by the representatives of majorities. But how would they be answered if the representative and constituent bodies were both thoroughly instructed in the sacred character and paramount authority and importance of thedutieswhich belong to the high function of sovereignty? We justly deny and deride the divine right of kings; and we assert and maintainthe divine right of the people to self government. And it is a divine right. It is a corollary from the right and duty to fulfil the purposes of our being, which accompany each one of us into the world. The right and the duty both come from the author of that being. He imposes the one when he gives the other, and thus fixes on us a responsibility which clings to us through life. We deceive ourselves if we think to get rid of any portion of this responsibility by entering into partnership with others, each one of whom brings into the concern the same rights, the same duties, and the same responsibilities;—neither more nor less than ourselves. We do but multiply, and divide again by the same number. Each receives, by way of dividend, the same amount of right, duty, and responsibility that he carried into the common stock. Of so high a nature are these, and so vast are the interests with which they are connected, that it has been truly said, that, whether we mount the hustings or go to the polls, we may well tremble to give or to receive the power which is there conferred.