Lecture XIII. ent con dition of our law. LECTURE XIII. OUR LAW: A CENTURY'S PROGRESS AND DEVELOPMENT. HAVING in previous lectures considered our law in its old home, and its distinguishing charThe pres- acteristics, its extension to and development in this country, its excellences and defects, and presented some views as to the scope and methods of its reformation or amendment, I shall now ask your attention to the present condition of our law as a result of the changes which have been wrought therein since the establishment of our national independence, a little more than a century ago. This lecture will illustrate anew how ceaseless are the movements of the social forces, and as a consequence that law inevitably undergoes constant changes, some of which are conscious and pre-determined, and others silent and irresistible but none and utility the less actual. It will also illustrate, I think, in a very striking manner the truth of Burke's philosophic statement, and coming from him most Equity the real foundations of law. 1 See ante Lecture XII. XIII. remarkable concession, that "in all forms of gov- Lecture ernment the people is the true legislator; and "whether the immediate and instrumental cause of "the law be a single person or many, the remote "and efficient cause is the consent of the people, "either actual or implied; and such consent is absolutely essential to its validity. . . . In reality "there are two, and only two, foundations of "law; and they are both conditions without which "nothing can give it any force: I mean equity and utility."1 66 It will, I think, also illustrate the fact that the wisest must be content to see but a little way in advance; that neither jurist nor legislator can expect the jurisprudential millennium (if I may so phrase their ideal) to come per saltum, if it ever comes at all, but must be content like the good physician to aid the vis medicatrix naturæ, rather than rashly to resort to heroic remedies which are full more apt to hurt than to cure. It will, moreover, and chiefly, The devel exemplify the consolatory truths that the rights of opment of the individual man, bottomed alone on the fact on these lines justhat he is a man, are being more and more realized tities a and secured; that men are becoming more humane, forecast. more benevolent and sympathetic, more regardful of the rights of others, more sensible of a common bond of humanity; and that although the paths are still toilsome, and ofttimes discouraging, the race of man is constantly reaching a higher level by rising 1 Tract on the Popery Laws, vol. vi., pp. 320, 323 (Little, Brown, & Co., American Edition of Burke's Works). See ante Lecture VII., p. 206, as to Burke's opinion that the passions of the people ought to be restrained "by power out of themselves." But the two views are not inconsistent. Pollock, "Science of Politics," pp. 86, 87. our law cheerful XIII. Lecture to higher conceptions of duty, which will in the due order and providence of God find their expression, embodiment, and glorious fruitage, in the still higher and better law of the future, which will more and more protect the rights of the individual, from invasion both by the State and by temporary majorities of the people. It will justify, I think, the encouraging and sustaining forecast of humanity expressed with the felicitous words which your Kent Professor knows so well how to use, when in his late Bennington oration he said that "the gift of prophecy "is mercifully withheld from man, but that hope, "kindlier than prophecy, stands in the place of it, "and it beholds with the eye of faith the great principles of civil and religious liberty working them"selves out to their final maturity, - a prosperity "more and more widely diffused among common Specific contributions to our law made by 66 men; an advancing civilization not without the "vicissitudes, the blemishes, the mistakes, the sor"rows through which humanity's path must always "lie, but in which the gain shall surpass the loss, "and the better surmount the worse, enlightened, "from generation to generation, by an increasing "intelligence, a broader knowledge, and a higher morality." Preliminary to noticing the specific changes during the century that is past in the laws common to both countries, I will briefly refer to a few of the the United more important contributions which we have made to our own system of laws. We have introduced into the law of nations the important principle of States. 1 Edward J. Phelps, Bennington, Vermont, Anniversary Oration, 1891. XIII. contribu voluntary expatriation; and by the Constitution Lecture of the United States, so far as this nation is concerned, treaties are declared to be the supreme law America's of the land, as binding upon the courts as the Con- tions. stitution or an act of Congress, and enforceable like other laws by the judicial tribunals. We have devised and put into successful operation, as shown in a previous lecture, written constitutional limitations upon every department of the government which protect the people against the power of the State as well as against their own 1 The history of this doctrine has been accurately traced by Professor Baldwin, of the Yale Law School (since raised to the Supreme Bench of the State), in his learned address on American Jurisprudence, heretofore referred to, delivered in 1892, before the Ohio State Bar Association. He says: "Into the law of nations we of America have introduced the principle of voluntary expatriation. It is, indeed, the condition of our existence. The doctrine of perpetual allegiance was undisputed in the Old World. Its application to Americans by the British Crown was one of the grievances recited in the Declaration of Independence; but we ourselves asserted its obligation long after independence had been achieved. Jeremiah Mason once said that the development of an American jurisprudence could only be looked for from the courts of the National Government. Upon this question, however, it was a court of a State, which, following the language of her constitution, framed by Franklin, first declared expatriation an original and indefeasible right of man; and this at a time when those of the United States adhered to the rules of the common law. See on this subject Murray v. McCarty, 2 Munford (Va.) Rep., 393, 1811; Williams's Case, Wharton's State Trials, 652. Thus it was left to Congress to affirm by statute the American principle, as soon as the nation felt strong enough to assert it against the world (United States Revised Statutes, § 1999; Act of July 27, 1868), and treaties which have been made, in pursuance of this declaration, have now obtained its recognition in almost every country that can call itself civilized. This new rule of American jurisprudence is the work of the bar rather than the courts. Its earliest supporters were Adams and Jefferson; and to our attorneys-general, and the great lawyers who from time to time have had the direction of the Department of State, we owe especially its international authority." contribu Lecture haste and passions. We have effected a complete XIII. and permanent separation of Church and State. America's We have established the security of titles to lands tions by a public registry system, which in effect compels the registration of every instrument which concerns real property. We have in every State of the Union adopted the principle of the equal inheritance of lands by all the children, male and female alike. We have made lands freely alienable and subject to the payment of debts, and in many respects ameliorated, improved, and simplified the law of real property.2 1 See ante Lecture VII., passim. ... 2 Ante Lecture VIII., p. 237 et seq., and note on p. 241. Mr. David Dudley Field, in a paper entitled "American Progress in Jurisprudence," prepared by request for the World's Congress on Jurisprudence and Law Reform in connection with the Columbian Exposition in Chicago, 1893, reprinted in the American Law Review, vol. xxvii., p. 641, gives a summary account of the progress of American laws and jurisprudence. I have space for only a few extracts from this instructive paper illustrative of the text: "We began with asserting the sovereignty of the people. This was done by the Declaration of Independence in 1776. . . . In our country this supreme power is divided between the Union and the States, but so much of it as has been given to the former was given by the latter. The result is, that Congress is not sovereign, nor is the President sovereign, nor is the Judiciary sovereign; nor, indeed, are all three combined sovereign. They may exercise their part of the sovereign power, but it is only by delegation that they exercise it at all. On the other hand, the reserved powers are all with the separate States [or the people thereof], so that we have in fact a divided sovereignty, but none the less is it true, that sovereignty in this country resides with the people, partly in all the States united, and partly in the several States —‘E pluribus unum.' (See ante Lectures V., VII.) ... Following this primal and fundamental principle of sovereignty in the people, and consecrated by it, are certain rights pronounced inherent in every human being, to be lost only for crime: the right to life; the right to liberty; the right to worship God as conscience dictates; the right to choose one's home wherever he can find it; the right to speak and write freely; and the right to labor when, where, and for such reward |