LECTURE V. OUR LAW IN ITS NEW HOME - AMERICA: ITS EXPANSION, IN V. N the preceding lectures I discussed the subject Lecture of Our Law in its Old Home, - England, — and some of its essential and distinguishing features. In the present lecture and the next I shall consider Our Law in its New Home, America, and its expansion and development in the institutions of the United States. In this I have a distinct purpose. I am concerned that you, as persons destined to the profession of the law, shall have an adequate and just appreciation of the real character of our laws, of their excellences and their defects. It is my Exceldeliberate opinion that our laws as they exist are laws. deserving of high regard and admiration. It is, in my judgment, a great error to assign (as I fear some are inclined to do) to our laws a place inferior to the Roman law, or its Continental adaptations. Professor Pollock, in his excellent lectures, lately published (1890), speaking of the United States, says: "We find a marked tendency in American authors "to take a Continental rather than an English view 1 Oxford Studies, lecture i. lences of our Lecture V. Our laws founded on the English model. Popular foundation of our political systems. 66 "of the general theory of jurisprudence. Not only our positive and analytical method finds little favor "with them, and their theoretical work is mostly "akin to that of the German philosophical and his"torical schools, but they treat the common law "itself as an ideal system to be worked out with great freedom of speculation and comparatively "little regard to positive authority. Decided cases are treated by them not as settling questions, but "as offering new problems for criticism. There "are even one or two American writers of great ability, for whom, as for the German expounders "of Naturrecht, legal science appears to consist in a "perpetual flux of speculative ideas." 1 66 I confess that I do not know to whom the learned professor in the last sentence refers; and I think he is mistaken in the general statement that American authors display a tendency to take a Continental rather than an English view of our jurisprudence, and to adopt German and Continental rather than English methods in the study and prosecution of legal science or the decision of legal problems. But if Professor Pollock is not mistaken, then the observations in this lecture and the next are all the more timely. Our government, state and national, embodies and rests upon the fundamental principle of the absolute and essential civil and political equality of all its citizens, whose collective will, expressed by majorities, is the rightful and only source of all political power. By this principle we must stand or fall. In adopting it, we reversed the 1 See ante Lecture I., p. 7, and note. V. doctrines of the governments of continental Europe, Lecture which doctrines were "that all popular and consti"tutional rights, all useful and necessary changes in "legislation and administration, can only emanate "from the free will and concession of the monarch "or instituted government." You may recall the discussion of this subject by Mr. Webster in the celebrated Hülsemann correspondence. The political doctrine he asserted, so familiar to us, and the elevated style and sustained dignity, force, and logic of this remarkable state paper, combined to fix upon it the attention of the contemporary world. Is this fundamental principle sound? As applied to our government, it has now stood the test of more than a century, overcoming our fears, strengthening and establishing our faith. I do not purpose to discuss its soundness; the stage of discussion ended more than a century ago. We then adopted it; we staked everything upon it. Our institutions to-day have no other foundation; and with it "we must sink or swim, live or die, survive or perish." famous legally President Lincoln's celebrated phrase in his Get- Lincoln's tysburg oration, wherein he described ours as the descripgovernment of the people, by the people, for the ton people," is not a mere flourish of rhetoric, but a exact. definition historically and legally exact. It is a government of the people, because it was ordained by their sovereignty; by the people, because it is carried on by their representatives and servants; 1 Letter of Daniel Webster as Secretary of State to Chevalier J. G. Hülsemann, Sept. 30, 1850. Webster's Works (Little & Brown, Boston, 1851), vol. vi., p. 488. V. Our gov ernment the con sent and interest of all the people. Lecture for the people, because it is maintained and conducted solely for their benefit and behoof. Well might the martyr President utter the fervent and effectual prayer that it might not "perish from the earth." We believe and maintain, indeed, that our government rests upon the broadest, deepest, and rests upon most secure of all possible foundations, since it rests upon the consent and interest of all; in a word, upon the sovereignty of society at large, which possesses all the powers necessary to preserve and secure the general welfare and safety, powers which," even Blackstone admits, "no climate, no "time, no constitution, no contract, can ever destroy "or diminish." It would seem to result that our self-governed nation is fitted to live, that it ought to live, and that it will live so long as it promotes the interest of the people, protects their rights and liberties, and safeguards the common weal. Boutmy's "Studies 66 Professor Émile Boutmy, member of the Institute in Consti- of France, has recently written a work, entitled tutional Law." "Studies in Constitutional Law-France- - England- United States." I have found it an interesting and suggestive book. He treats of the differences, not only in the structure and form, but also in the genius, of the constitutions of England and the United States on the one hand, and of France on the other. In the preface to the second edition he states that though tempted to do so, he has refrained from entering upon certain extraconstitutional questions in the United States which he says have lately arisen and will certainly be some of the problems of the future. These he thus enumerates : V. "The rapidity with which the growth of landed Lecture "estates has begun and progresses; the immense "extent of the latifundia; the approaching exhaus- Boutmy's "tion of the available soil, — that seemingly inex- tions and "haustible treasure; the increase of tenant farmers. 66 (a class hitherto almost unknown, and now by degrees replacing the yeomen who work their "own estates); the appearance of the agrarian question; the radical and socialistic character of "the remedies proposed, these things all show an "alteration of the ancient basis on which the polit"ical fabric was erected. But if it is certain "that the United States will tend to enlarge and "strengthen the action of the central government "in proportion to their advance in population and "material civilization, one cannot say as yet whether "this centralization will be for the benefit of a single federation or of several. The question of secession is not yet closed. Will the government "of Washington alone profit by the powers taken "from the thirty-eight States, or will these powers "be divided among three or four governments at "the head of federations fixed by natural geographical divisions? These are serious questions, "which I could not have entered upon without giv"ing more space to speculative conjectures than was "compatible with my original plan."1 แ specula fears. Professor Boutmy is not only an intelligent but Not justified by a candid observer and careful student of our existing history; nevertheless, I must say that I certainly tions. 1 "Studies in Constitutional Law France England — United States." By Émile Boutmy. Dicey's translation (Macmillan), London, 1891. condi |