the Supreme Court are almost all to be found in the third volume of Dallas's Reports. The first great and grave question which came before them was that respecting the liability of a state to be sued by a private creditor; and it is a little remarkable that the court, in one of its earliest decisions, should have assumed a jurisdiction which the authors of the Federalist had a few years before declared to be without any color of foundation. During the period I have mentioned, the federal courts were chiefly occupied with questions concerning their admiralty jurisdiction, and with political and national questions growing out of the Revolutionary War, and the dangerous influence and action of the war of the French revolution upon the neutrality and peace of our country. It was during this portion of our judicial history that the principles of the doctrines of expatriation, of ex post facto laws, of constitutional taxes, and of the construction and obligation of the treaty of 1783 upon the rights of the British creditors, were ably discussed and firmly declared.

*

The reports of Mr. Cranch commenced with the year 1801, and the nine volumes of those reports cover the business of a very active period, down to the year 1815. The Supreme 443 Court was occupied with many great and momentous questions, and especially during that portion of the time in which the United States had abandoned their neutral and assumed a belligerent character. It is curious to observe in these reports the rapid cultivation and complete adoption of the law and learning of the English admiralty and prize courts, notwithstanding those courts had been the constant theme of complaint and obloquy in our political discussions for the fifteen years preceding the war. In the last three volumes of Mr. Cranch, the court was constantly dealing with great questions, embracing the rights and the policy of nations; and the prize and maritime law, not of England only, but of all the commercial nations of Europe, was suddenly introduced, and deeply and permanently interwoven with the municipal law of the United States. We perceive, also, in these volumes, the constant growth and accumulation of cases on commercial law generally, and relating to policies of insurance, negotiable paper, mercantile partnerships, and the various customs of the law merchant. The court was likewise busy in discussing and settling important principles growing out of the limited range of other matters of federal cognizance, and relating

to the law of evidence, to frauds, trusts, and mortgages. They were engaged, also, with the doctrine of the limitation of suits, the contract of sale, and with the more enlarged subjects of domicile, of the lex loci, of neutrality, and of the numerous points of international law.

*

By the time of the commencement of Mr. Wheaton's reports, in 1816, the decisions of the Supreme Court had embraced so many topics of public and municipal law, and those topics had been illustrated by so much talent and learning, that, for the first time in the history of this country, we were enabled to perceive the broad foundations and rapid growth of a code of national jurisprudence. That code has been growing and improving ever since, and it has now become a solid and magnificent structure; and it seems destined, at no very distant period of time, to *444 cast a shade over the less elevated, and, perhaps, we must add, the less attractive and ambitious systems of justice in the several states. The most interesting part of Mr. Wheaton's reports are those which contain the examination of those great constitutional questions which we have been reviewing; and I cannot conceive of any thing more grand and imposing in the whole administration of human justice, than the spectacle of the Supreme Court sitting in solemn judgment upon the conflicting claims of the national and state sovereignties, and tranquillizing all jealous and angry passions, and binding together this great confederacy of states in peace and harmony, by the ability, the moderation, and the equity of its decisions.

There are several reasons why we may anticipate the still increasing influence of the federal government, and the continual enlargement of the national system of law in magnitude and value. The judiciary of the United States has an advantage over many of the state courts, in the tenure of the office of the judges, and the liberal and stable provision for their support. The United States are, by these means, fairly entitled to command better talents, and to look for more firmness of purpose, greater independence of action, and brighter displays of learning. The federal administration of justice has a manifest superiority over that of the individual states, in consequence of the uniformity of its decisions, and the universality of their application. Every state court will naturally be disposed to borrow light and aid from the national courts, rather than from the courts of other

individual states, which will probably never be so generally respected and understood. The states are multiplying so fast, and the reports of their judicial decisions are becoming so numerous, that few lawyers will be able or willing to master all the intricacies and anomalies of local law, existing beyond the boundaries of their own state. Twenty-six independent state courts of final jurisdiction over the same questions, arising upon the same general code of common and of 445 equity law, must necessarily impair the symmetry of that code.

The danger to be apprehended is, that students will not have the courage to enter the complicated labyrinth of so many systems, and that they will, of course, entirely neglect them, and be contented with a knowledge of the law of their own state, and the law of the United States, and then resort for further assistance to the never failing fountains of European wisdom.

But though the national judiciary may be deemed preeminent in the weight of its influence, the authority of its decisions, and in the attraction of their materials, there are abundant considerations to cheer and animate us in the cultivation of our own local law. The judicial power of the United States is necessarily limited to national objects. The vast field of the law of property, the very extensive head of equity jurisdiction, and the principal rights and duties which flow from our civil and domestic relations, fall within the control, and we might almost say the exclusive cognizance, of the state governments. We look essentially to the state courts for protection to all these momentous interests. They touch, in their operation, every chord of human sympathy, and control our best destinies. It is their province to reward and to punish. Their blessings and their terrors will accompany us to the fireside, and "be in constant activity before the public eye." The elementary principles of the common law are the same in every state, and equally enlighten and invigorate every part of our country. Our municipal codes can be made to advance with equal steps with that of the nation, in discipline, in wisdom, and in lustre, if the state governments (as they ought in all honest policy) will only render equal patronage and security to the administration of justice. The true interests and the permanent freedom of this country require that the jurisprudence of the

individual states should be cultivated, cherished, and exalted, and the dignity and reputation of the state authorities * 446 sustained with becoming *pride. In their subordinate relation to the United States, they should endeavor to discharge the duty which they owe to the latter, without forgetting the respect which they owe to themselves. In the appropriate language of Sir William Blackstone, and which he applied to the people of his own country, they should be "loyal, yet free; obedient, and yet independent."

[506]

PART III.

OF THE VARIOUS SOURCES OF THE MUNICIPAL LAW OF THE SEVERAL STATES.

LECTURE XX.

OF STATUTE LAW.

MUNICIPAL LAW is a rule of civil conduct, prescribed by the supreme power of a state. Municipal law, or the jus civile, is thus explained in the Institutes of Justinian. Quod quisque populus ipse sibi jus constituit, id ipsius proprium est civitatis; vocaturque jus civile, quasi jus proprium ipsius civitatis. This definition is less precise and scientific than that given by Sir William Blackstone. Municipal law is composed of written and unwritten, or of statute and common law. Statute law is the express written will of the legislature, rendered authentic by certain prescribed forms and solemnities.1

It is a principle in the English law, that an act of Parliament, delivered in clear and intelligible terms, cannot be questioned, or its authority controlled, in any court of justice. "It is," says Sir William Blackstone, "the exercise of the highest authority that the kingdom acknowledges upon earth." When it is said in the books, that a statute contrary to natural equity and reason, or repugnant, or impossible to be performed, is void, the cases are understood to mean that the courts are to give the statute a reasonable construction. They will not readily presume, out of American Law Review, vi. 723, et s. may also be referred to.

1 For an accurate analysis of the nature of law, the student should consult Bentham's Fragment on Government, Works, i., esp. p. 263, note (b), and Austin on Jurisprudence, Lect. I., & passim. A short criticism of Austin's views in the

The jus civile of the Romans was defined as above in contrast to the jus gentium explained ante, 1, n. 1.