View of the Constitution of the United States. St. George Tucker
To assist his labours, and often to supply the want of a law which no diligence might enable him to procure, was deemed an object of no small importance. And here we may be permitted to remark, that the settlement of this country is too recent not to render that policy very questionable, which consigns to oblivion not only temporary and occasional acts, but the laws which regulate personal property, (which have, perhaps without intention, been repeatedly altered and omitted) and even those, by which the titles to lands have been originally acquired, and are still held; not to mention those, by which counties have been divided, courts established, records removed, and a multitude of other arrangements made, altered, and repealed; so as to render a complete acquaintance with the laws of this country, one of the most difficult of human acquirements. A general view of such of the omitted laws as relate to the original acquisition, and subsequent disposal of lands, and other estates of persons dying intestate would well deserve the attention of the student; and although most of them are now out of print, a bare enumeration of their titles, with the periods of their enaction, suspension, or repeal, might be of singular use to those whose interests are likely to be affected by their temporary existence. In researches of this nature a stock of knowledge is acquired whose value is the more precious as it becomes more scarce. To form a complete digest of statute law appears to have been a favourite object with the legislature of Virginia from its first settlement … but unfortunately every attempt of the kind seems to have been the parent of new perplexities, by the introduction of new laws; and the re-enaction, omission, or suspension of former acts, whose operation is thus rendered doubtful, even in the most important cases. It has been supposed, for instance, that whenever the legislature have had a bill before them, the rejection of any particular clause therein contained is to be considered as a declaration of the legislative will, that the part rejected shall not be law; or if it be law already, that it shall thenceforth cease to be the law of the land: but will it be supposed that it was the intention of the legislature in 1792, when they struck the act of 1788, c. 23. out of the slave law, to repeal that act, by which the act of 1748, declaring that a person guilty of the manslaughter of a slave should incur no punishment for it, had been but a few years before repealed; under circumstances which excited a just horror that such an act should so long have disgraced our code. On the other hand, would it not probably be equally wide of the truth to presume it was the intention of the legislature to continue in force those parts of the act of 1748, which were also stricken out of the same bill, in the year 1792, and by which the outlawing and shooting of run-away slaves had been formerly authorised? Though no general rule can therefore be laid down upon this subject, it appeared practicable to assist the student in forming a tolerably just conclusion in particular cases. To aid his researches in the several instances before pointed out, was another object of the Editor’s undertaking.
Such being the outlines of his plan, he entered upon the execution of it with a zeal, which, if it had been seconded with equal ability, would doubtless have produced a valuable system of FEDERAL and STATE JURISPRUDENCE, so far at least as relates to the COMMONWEALTH OF VIRGINIA. … to have engrafted the laws of all the states in the union, was a work too extensive in the plan, and would have been too voluminous in its execution for him to undertake, whatever might have been his aids, or his talents for such an undertaking: he therefore contented himself with the hope of being particularly useful to the students of law in his own state, and generally so, to those in other states, who were solicitous to become acquainted with the principles of the constitution of the federal government, and the general laws of the union.
Before he concludes, it may not be improper to add a few remarks on the study of the law in this country. If it be true that those nations which have been most distinguished for science, have been also most distinguished for the freedom they have enjoyed, the conclusion would immediately follow that liberty and science were inseparable companions. But here an objection immediately presents itself, that illiterate and barbarous nations are found to possess a greater portion of freedom, in their constitutions and government, than is to be met with in any civilized nation whatsoever. The ancient Gauls and their neighbours the Germans, not to mention other barbarous nations, appear to have lived under a kind of government as free as that of the Indians of this continent, and were equally strangers to literature and to science. But with these and all other barbarous nations, government hath always been a most simple machine, adapted to very few purposes, and those such as might obviously be effected by the aid of a simple contrivance. Their dress, their houses, their mode of living, and their mode of warfare, all partook of the same simplicity. An itinerant nation, or one living in common, would have few ideas respecting the rights of property; their martial temper rendered every individual the arbiter, asserter, and avenger of his own personal rights. Hence very few cases occurred where there could be room for the authority of the civil magistrate to interfere: such magistrates, therefore, appear to have been unknown among them: even their military chiefs seem to have possessed no personal authority but in war; and it is not improbable that their military institutions partook in an eminent degree of the simplicity of the civil. The principles, upon which the government, whether civil or military, was to be administered, being few and simple, were easily understood. Government in this state may be compared to a seedling oak, that has just burst the acorn and appears above the surface of the earth with its first leaves; it advances with civilization, rears its head in proportion as the other increases; and puts forth innumerable branches till it covers the earth with an extensive shade, and is finally regarded as the king of the forest: all behold it with reverence, few have any conception of its magnitude, or of the dimensions, or number of its parts; few are acquainted with the extent of its produce, or can compare the benefits derived from its shade, with the loss of soil which it appropriates to its own support. In such a state, in vain would the rude hand of the barbarian attempt to trace its figure; science, only, is equal to the task, and, even she will find it painful, laborious, and incessant; since every year is the parent of new branches, or the destroyer of old ones: nor will a superficial observation of its exterior alone, suffice; the roots may be decayed, the trunk hollow, and the monarch of the forest ready to fall with its own rottenness and weight, at the moment that its enormous bulk, extensive branches, and luxuriant foliage would seem to promise a millennial duration.
Moreover, society and civilization create a thousand relations unknown to savage life: these are extended and diversified in such a manner that the machine of government becomes necessarily more complex in its parts, in proportion as its functions are multiplied. Those who administer it acquire a mechanical acquaintance with its powers, and often, by a slight alteration in the frame, produce an entire revolution in the principles of its action; to detect the cheat requires a thorough acquaintance with the principles of its original construction, and the purposes to which it was intended to be applied. Hence the facility with which governments, free in their institution, have been overturned by the usurpations, or contrivances, of those, to whom the administration of them hath been committed. Science counteracts this mechanical monopoly of knowledge, and unfolds to its votaries those principles which ought to direct the operations of the machine; discloses the application of other powers, and demonstrates the source from which they spring, and the effect they are calculated to produce. Hence, since the introduction of letters, those nations which have been most eminent in science, have been most distinguished by freedom. Man only requires to understand his rights to estimate them properly: the ignorance of the people is the footstool of despotism.
The study of the law may seem in all countries, in some degree, to be connected with the study of the constitution of the nation. Yet in arbitrary governments questions concerning the constitution rarely occur, and are still more rarely discussed; hence in such governments the study of the law, merely as a profession, does not seem necessarily to require the study of the constitution; the former being limited to such controversies between individuals, as do not involve in them any question of the authority of the government itself: and the latter being supposed to be a theme too exalted for the comprehension of a private individual, and as such discouraged and neglected, until time or accident hath directed the attention of men of talents to a subject so important to the happiness of mankind. But in America the force and obligation of every positive law, and of every act of government, are so immediately blended with the authority of the government itself, as confided by the people to those who administer it, that no man can pretend to a knowledge of the laws of his country, who doth not extend that