CHAPTER II.

PRINCIPLES OF RIGHT, LAW, AND GOVERNMENT.

§ 10. American law. American law is the resultant product of the world's progress in the domain of Jurisprudence and Politics (1). In its highest aspect and most permanent form, it is a great body of doctrines and principles drawn from the water-shed of the world's civilization (2). The societies which united to form the American Nation, came together from many lands and came imbued with diverse ideas of Religion, Law, and Liberty. They became a people under the stress and pressure of causes impelling them thereto, under peculiar conditions, they ultimately created the Government which now endures and based it upon principles never before made the foundation of a great Nation.

This constitution was not modeled after any other which had existed. The statement of Madison is quite true, that "had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the

1 See infra, Sources and Systems of Law.

2 The truest gauge of a nation's civilization is its system of Jurisprudence. Baldwin's Modern Political Institutions, 293; see also Guizot Hist, Civilization, ch. 8.

United States would, at this moment, have been numbered among the melancholy victims of misguided counsels; must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe" (3).

§ 11. United States a leader in the science of government. The framers of the constitution of the United States approached the task of framing a national constitution with an equipment for such work which could not have been so well gained in any other manner than by the experience of the decades which intervened between the time when the alliance between the colonies first became a real union and the time when it became apparent to all that the confederation between the states lacked entirely the national character. It was then that the architects of the new nation began seriously the work of selecting the fundamental principles as materials and the theories for framing them into a new form of Government (4). They were thoroughly appreciative of the

3 Federalist, No. 14.

♦ Mr. Justice Wilson, in his opening lecture (before the Law School now the University of Pennsylvania) said: "The foundations of political truth have been laid but lately; the genuine science of government, to no human science inferior in its importance, is indeed but in its infancy, and the reason of this can be easily assigned. In the whole annals of the Trans-Atlantic world, it will be difficult to point out a single instance of its legitimate institution. I will go further, and say that among

peculiarity of their situation in the condition of equality of the citizens and the opportunity there and then open to them to create a National Government on such principles as the people choose to approve.

They were thoroughly alive to the dignity of the position, the magnitude of their undertaking, and the probable effect of their experiment upon the nations of the world (5).

§ 12. Right and law, jural conception. Every society where right and law are respected must be organized upon and operated in conformity with certain fundamental axioms or principles of Right, Law and Government. Reflection makes it obvious that the absolute monarch cannot admit the principles which obtain under a constituion where prerogative is limited by compact and charter and that a republic of equal citizenship cannot subscribe to the idea of the omnipotence or supremacy of even the legislative branch of Government. The builders of this nation were confronted with this great fundamental question. There were many conflicting theories and out of these they created a new Government on a new model, differing fundamentally on all the great parts of its structure and widely on subordinate details of

all the political writers of the Trans-Atlantic world it will be difficult to point out a single model of its unbiased theory." 1 Wilson's Works (last ed.), 20, quoted by Simeon Baldwin, American Bar Association, Rep. (1889).

Mr. Wilson said in the Pennsylvania convention of 1787: "By adopting this constitution we shall become a nation; we are not now one. We shall form a national character; we are now dependent on others." He proceeded with a remarkable prediction of the influence which American freedom would exert upon the Old World, Elliott's Debates, vol. II, p. 526.

property jurisdiction and procedure. "In every legal system, there is to be found a great hierarchy of leading principles-commencing at the central Institutions of the Family, the State, Ownership, Contract, and Procedure, and proceeding to the order, next in succession, of Rights and Duties, and Acts and Events giving rise to Rights and Duties, till the finest modifications are reached in the accurate delineation of Rights and Duties as dependent on an indefinite variety of states of fact." Amos on Eng. Code, p. 68.

What then is the American Jural conception of Right and Law? Quite frequently, if not generally, Law and Right are treated separately, thereby obscuring the truth that they are correlatives which can no more exist apart than can a shadow exist without light and substance; Right is the result of Law; Law the life and light of Right. "The words which denote the instruments and materials of legislation and the subject-matter of jurisprudence are Law, Sanction, Title, Right, Obligation. The definitions of these five terms may, indeed, be regarded as a single definition, for the things denoted by these five words are merely the same thing looked at from different sides: at least they are correlative ideas, indissolubly connected parts of the same indivisible whole. The definitions of these terms which we proceed to give are their definitions, it is to be observed, as used in jurisprudence, that is, in the exposition not of natural or moral laws but of positive or political laws, and are accordingly unconnected with the hypotheses of any particular school of Ethical speculation. "Every

Right implies law by which it is created, a Title to which it is annexed, a Sovereign by whom it is enforced, a sanction by means of which it is enforced, a person in whom it resides, and a person on whom a correlative obligation is incumbent. The same, mutatis mutandis, may be said of every relative Obligation." Poste's Gaius, p. 2. The word Right is here used as a substantive and not as an adjective indicative of a moral quality to be contrasted with bad, iniquitous, etc. (6) The necessity and utility of this inquiry is plain. James C. Carter, long recognized as a leader of our bar, says: "There is one branch of legal study quite essential, as I think, in the making of a thorough lawyer, to which I fear sufficient importance is not attached in the schools, and concerning which no little misapprehension exists. I mean the elementary inquiry what law really is, and the sources from which it proceeds. The mind so constantly views it as something to be obeyed, that it is naturally taken to be a command, or a body of commands, proceeding from the supreme power in a State; and such it has been defined to be by the highest authorities, among them Blackstone

6"We may therefore define a 'Legal right,' in what we shall hereafter see is the strictest sense of that term, as a capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others."

"If the expression of widely different ideas by one and the same term resulted only in the necessity for these clumsy paraphrases, or obviously inaccurate paraphrases, no great harm would be done; but unfortunately the identity of terms seems irresistibly to suggest an identity between the ideas which are expressed by them." Holland Juris., p. 72-73.

"All legal right and wrong had its origin after human society was put in motion and began to reflect and act. To talk of Law and Right as applied to mankind at a supposed time anterior to society beginning to think and act is a contradiction in terms." Keener's Selections juris.,