1.Juris praecepta sunt haec, honesta vivere, non laudere suum cuique tribuere. Inst. 1.1.3.
2. Pufendorf, l 7. c. 1. compared with Barbeyrac's Commentary.
3. Ff. 1. 19.
4. Inst 1.2. 1.
5. The laws of Virginia are promulgated by printing; copies of them are sent to the clerks of the county courts for the use of each magistrate, clerk, state's attorney, and sheriff in the County, or Corporation. Copies are likewise furnished the Judges of the Superior Courts. The Laws of the United States have been usually reprinted by the Printer to the Commonwealth, at the public expense, and distributed in the same manner. See V. L. 1794. c. 62. 3. 8. Certain laws are likewise directed to be translated and printed in the German language. Resolution of both Houses, December 23, 1794. Sessions Acts. By the Act of 3. Cong. c. 115. the Secretary of State is required to furnish the Executives of the several States, and of the Territories Northwest, and South of the River Ohio, with four thousand five hundred copies of the Edition of the Laws of the United States, by that Act directed to be printed, and the like number of the Acts passed at each succeeding Session, to be divided among them according to the rule for apportioning Representatives, and distributed as the Executive or Legislature of the States shall deem most conducive to the general information of the people. And by the act of 5. Cong. c. 136. five thousand copies are directed to be printed and distributed in like manner. The act further directs that every order, resolution, or law passed by Congress, shall be published by the Secretary of State in at least one, and not more than three, of the Newspapers in each State. — T.
6. No ex post facto law shall be passed by Congress; or by any of the United States. C. U. S. Art. 1. §. 9. 10. — T.
7. Such laws among the Romans were denominated privilegia, or private laws of which Cicero (de leg. 3.19. and in his oration pro domo, 17.) thus speaks: "Vetant leges sacratae, vetant duodecim tabulae, leges privatis hominibus inogari; id enim est privilegium. Nemo unquam tulit: nihil est crudelius, nihil perniciosius, nihil quod minus haec civitas ferre possit."
8. See Appendix to this Volume, Note A. — T.
9. Whatever difficulty or uncertainty there may be in tracing the origin of the several forms of government in the Old World, it is the distinguished happiness of America that no such difficulty or uncertainty can here prevail as will be shown hereafter. — T.
10. In a former note, (Appendix, note A,) we endeavored to shew that this maxim does not apply to the governments of the American Stales; by whose respective Constitutions, as also by the Constitution of the Federal Government, the legislative power is restrained within certain limits, both in the Federal and State Governments, which neither the Congress, nor the State Legislatures can transgress, without an absolute breach of the Constitutions from whence the Legislative Authority is derived. For, both the Federal, and State Constitutions derive their authority and existence from the immediate act, and consent of the people, "in whom" as our bill of rights expresses it, "all power is vested, and consequently, is derived from them." These acts of the people having, then, the stamp of primitive authority, must be paramount to the act of the Legislative body, which derives its authority, and even its existence from that origin.32 And since the powers of the Legislature are thus limited, it follows that the Jura summi imperii, or that supreme, irresistible, absolute, uncontrolled authority, of which the commentator makes mention in a preceding paragraph, doth not reside in the legislature, nor in any other of the branches of the Government, nor in the whole of them united. For if it did reside in them, or either of them, then would there be no limits, such as may be found in all the American Constitutions, to the powers of Government. The existence of such limits proves the existence of an higher power elsewhere; that is, in the PEOPLE; in whom, and in whom, only, the rights of sovereignty remain: the people, therefore, only, and not the Legislature, have it at any time in their option to alter the form and administration of Government, by a new edict or rule, and to put the execution of their authority into whatever hands they please: and all the powers of the State, the Legislature as well as the rest, must obey them in the execution of their several functions, or
the Constitution will, indeed, be at an end. For the Constitution is a law to the Government, "which derives its just powers therefrom, as from the consent of the governed, for whose benefit that power is entrusted, and by whom, whenever it is abused, or exceeded, it may be revoked, and a new government instituted." See the American Declaration of Independence, July 1776. — T.
11. In his fragments de rep. l. 2.
12. "Cunctas nationes et urbes, populus, aut primores, aut singuli regunt: delecta ex his et constituta reipublicae forma laudari facilius quam eveniri, vel, si evenit, haud diuturna esse potest." Ann l. 4."
13. See Appendix. Note B. — T.
14. This is an imposing picture: but let us see how this assembly is described, by an Ethical writer of the same country, and age. Officers of the army and Navy, courtiers, ecclesiastics, young men who have just attained the age of twenty one, and who have passed their youth in the dissipation and pursuits which commonly accompany the possession, or inheritance of great fortunes; country gentlemen occupied in the management of their estates, or in the care of their domestic concerns, and family interests; the greater part of the Assembly born to their station, that is, placed in it by chance; most of the rest advanced to the peerage, for services," etc. Paley's Philosophy B. 6. c. 8. May we not conclude with him. That there appears to be nothing in the education, habits, character, or professions of the members who compose that Assembly; in the mode of their appointment, or in the right by which they succeed to their places in it, to qualify them for their station? — T.
15. How then must it be if the two most numerous branches should become subservient to the views of the third. See Mackintosh's Defence of the French Revolution, 3d. London Edition ... pa. 264, 265, and pa. 337, to 341, cited in Appendix to this Volume. Note B. "The Constitution of Great Britain, says an American writer, is established only on precedents, or compulsory concessions, between parties at variance. These can be no longer binding than whilst the parties respectively possess the means of enforcing their observance. Of course it is, and always has been a government of contention, in which the opposite parties have been for a length of time by chance so nearly balanced, as not to have destroyed each other. How long this will last it is difficult to say; but it may be affirmed that there is nothing of stability in their Constitution, and that almost every new case of importance introduces some new innovation in it. This is evident from their history and will appear particularly so from a perusal of Judge Blackstone's ingenious explanation of the right of succession to the crown; where it may be seen how every fresh incident has given occasion to a different modification of this right. The several powers of government are limited, though in an uncertain way, with respect to each other; but the three together are without any check in the Constitution, although neither can be properly called the Representatives of the people. It is for this reason that this transcendent power, or omnipotence is ascribed to their parliaments .... What stretch of authority they have usurped and exercised with impunity, is considered as their established privilege; for they hold it as a maxim, that whatever they have once done, however improperly, they have a right to do again. What farther powers they may safely assume experiment only can teach." Conciliatory Hints to the Citizens of South Carolina: by Philodemus .... 1784. — T.
16. On government, part ii. §. 212.
17. Since, according to the fundamental principles of both the Federal and State Constitution, and Government, the supreme power (or Jura summi imperii) resides in the people, it follows that it is the right of the people to make laws. But as the exercise of that Right by the people at large would be equally inconvenient and impracticable, the constitution of the State has vested that power in the General Assembly of the Commonwealth; and the Constitution of the United States has reposed the exercise of the1 same power as it relates to the Federal Government, in the Congress of the United States; a body composed either immediately, or mediately, of Representatives of the People; the House of Representatives being the immediate delegates of the people in their individual capacity; the Senate representing them in their politic capacity, as forming different States; the latter although not chosen by the people, themselves, yet being chosen by the State Legislatures, which have no rights, nor authority, nor even an existence, but from the People, must be considered in the same light as the Representatives who are immediately chosen by them. It is from these express provisions both in the State, and Federal Constitutions, and not from metaphysical deduction, that the State, and Federal Legislatures derive the power of making Laws. See Constitution of Virginia, Art. 8. C. U. S. Art. 1. — T.
18. After what has been said in two former notes, it may be expected that we should refuse our assent, in America, to the applicability of this part of the commentator's definition of municipal law to the nature of our own governments. I therefore incline to prefer the definition of Justinian; "Just civile est quod quisque sibi populus constituit," to that of Mr. Blackstone, thus far. This I apprehend may be considered as comprehending the whole body of national institutions, from whatever source or authority derived; whether the immediate act of the people, or that of the ordinary legislature, or founded on long and immemorial usage; whereas Mr. Blackstone's definition presupposes an act of the legislature in every case whatsoever; otherwise according to his own principles, no rule of law can be said to be "prescribed by the supreme power in the state." And however ingenious, and specious the argument may appear, that all the unwritten rules of law are founded upon some positive Statute, the memory of which has been lost, I can not help suspecting that there is more of ingenuity than truth in the idea; for the remote vestiges of legislative authority in England are too faint at this day, for us to repose much confidence in such theoretical conjectures. According to Cicero, every rule of law must have a just sanction for its support. This may be, either the immediate act of the people declaring and establishing the fundamental laws and constitution of the state; or the act of the ordinary legislature; or immemorial Custom, and Usage; or former precedents, founded upon the nature of the Government, and the application of its principles, and the maxims of sound reason, to each particular case; or lastly, the application of those maxims and principles, to any new case; where no former precedent, custom, usage or positive precept can be found: but in this application we must be careful not to introduce any new law, but, as far as possible to adapt the established rules of law to
every such new case; and where that can not otherwise be done, we must adhere to the maxim, "potior est conditio defendentis." We shall now proceed with the Commentator to the remaining parts of his definition, in which we shall probably meet with no difficulty in subscribing to his opinion. — T.
19. See page 43.
20. Locke, Hum. Und. b. 2. c. 21.
21. See Vol III. 420.
22. This is a doctrine to which the Editor cannot subscribe. It is an important question, and deserves a more extensive discussion than can conveniently be introduced into a note. The solution of it may not only affect the quiet of the minds of conscientious men, but may be the foundation of arguments and decisions in every branch of the law. To form a true judgment upon this subject, it is necessary to take into consideration the nature of moral and positive laws. The principle of both is the same, viz. utility, or the general happiness and true interests of mankind, Atque ipsa utilitas justi prope mater et aequi. But the necessity of one set of laws is seen prior to experience; of the other, posterior. A moral rule is such, that every man's reason (if not perverted) dictates it to him as soon as he associates with other men. It is universal, and must be the same in every part of the world. Do not kill, do not steal, do not violate promises, must be equally obligatory in England, Lapland, Kamchatka, and New Holland. But a positive law is discovered by experience to be useful and necessary only to men in certain districts, or under peculiar circumstances. It is said that it is a capital crime in Holland to kill a stork, because that animal destroys the vermin which would undermine the dykes or banks, upon which the existence of the country depends. This may be a wise law in Holland; but the life of a stork in England would probably be of no more value than that of a sparrow, and such a law would be useless and cruel in this country. By the laws of nature and reason, every man is permitted to build his house in any manner he pleases; but from the experience of the destructive effects of fire in London, the legislature with great wisdom enacted that all party-walls should be of a certain thickness; and it is somewhat surprising that they did not extend this provident act to all other great towns. (14 Geo. 3. c. 78.)
It was also discovered by experience, that dreadful consequences ensued, when sea-faring people, who returned from distant countries infected with the plague, were permitted immediately to come on shore, and mix with the healthy inhabitants, it was therefore a wise and merciful law, though restrictive of natural right and liberty, which compelled such persons to be purified from all contagion by performing quarantine. (4 Vol. 161.) He who, by the breach of these positive laws, introduces conflagration and pestilence, is surely guilty of a much greater crime than he is who deprives another of his purse or his horse. The laws against smuggling are entirely juris positivi; but the criminality of actions can only be measured by their consequences; and he who saves a sum of money by evading the payment of a tax, does exactly the same injury to society as he who steals so much from the treasury; and is therefore guilty of as great immorality, or as great an act of dishonesty. Or smuggling has been compared to that species of fraud which a man would practice who should join with his friends in ordering a dinner at a tavern, and after the festivity and gratifications of the day, should steal away, and leave his companions to pay his share of the reckoning. Punishment or penalties are never intended as an equivalent or a composition for the commission of the offence; but they are that degree of pain or inconvenience, which are supposed to be sufficient to deter men from introducing that greater degree of inconvenience, which would result to the community from the general permission of that act, which the law prohibits. It is no recompense to a man's country for the consequences of an illegal act, that he should afterwards be whipped, or should stand in the pillory, or lie in a jail. But in positive laws, as in moral rules, it is equally false that omnia peccata paria sunt. If there are laws, such perhaps as the game-laws, which in the public opinion produce
little benefit or no salutary effect to society, a conscientious man will feel perhaps no further regard for the observance of them, than from the consideration that his example may encourage others to violate those laws which are more highly beneficial to the community. Indeed, the last sentence of the learned Judge upon this subject, is an answer to his own doctrine; for the disobedience of any law in existence, must be presumed to involve in it cither public mischief or private injury. It is related of Socrates, that he made a promise with himself to observe the laws of his country; but this is nothing more than what every good man ought both to promise and to perform: and he ought to promise still farther, that he will exert all his power to compel others to obey them. As the chief design of established government is the prevention of crimes and the enforcement of the moral duties of man, obedience to that government necessarily becomes one of the highest of moral obligations: and the principle of moral and positive laws being precisely the same, they become so blended, that the discrimination between them is frequently difficult or impracticable, or, as the author of the Doctor and Student has expressed it with beautiful simplicity "In every law positive well-made, is somewhat of the law of reason and of the law of God; and to discern the law of God and the law of reason from the law positive, is very hard." 1 Dial. c. 4. Christian. — T.
23.Lex pure poenalis obligat tantum ad poenam, non item ad culpam: lex poenalis mixta et ad culpam obligat et ad poenam. (Sanderson de conscient. obligat. prael. viii. §. 17. 24.)
24. Inst. 1.2.6.
25. L. of N. and N. 5.12. 3.
26. It is an established rule of construction that statutes in pari materia, or upon the same subject, must be construed with a reference to each other; that is, that what is clear in one statute, shall be called in aid to explain what is obscure and ambiguous in another .... Thus the last qualification act to kill game (22 and 23 Car. 2. c. 25.) enacts, "that every person not having lands and tenements, or some other estate of inheritance, of the clear yearly value of 100l. or for life, or having lease or leases of ninety-nine years of the clear yearly value of 150l." (except certain persons) shall not be allowed to kill game. Upon this statute a doubt arose, whether the words or for life should be referred to the 100l. or to the 150l. per annum. The court of king's bench having looked into the former qualification acts, and having found that it was clear by the first qualification act (13 R. 1. st. 1. c 13 ) that a layman should have 40s. a year, and a priest 10l a year, and that by the 1 Jac. 27. the qualifications were clearly an estate of inheritance of 10l. a year, and an estate for life of 30l. a year they presumed that it still was the intention of the legislature to make the yearly value of an estate for life greater than that of an estate of inheritance, though the same proportions were not preserved; and thereupon decided, that clergymen, and all others possessed of a life estate only, must have 150£ a year to be qualified to kill game. Lowndes v. Lewis, E. T. 22 Geo. 3. The same rule to discover the intention of a testator is applied to wills, viz. he whole of a will shall be taken under consideration, in order to decipher the meaning of an obscure passage in it. Christian. — T.
27. So we must resort to the Common-Law of England to explain that part of the Constitution of the United States, which declares, that the benefit of the Writ of Habeas Corpus, shall not be suspended except in case of rebellion, or invasion. — T.
28. l. 5. C. 12. §8.
29. l. 1. c. 11.
30. On this subject of the interpretation of Laws in General, see Doctor Rutherforth's Inst. of Nat. Law, B. 2. c. 7. — T.
31.de aequitate, §3.
32. And herewith Vattel, B. 1. c. 3. §. 34. agrees. — T.
