Notwithstanding these circumstances, the COMMENTARIES have continued to be regarded as the student’s guide, in the UNITED STATES; and many there are, who without any other aid have been successful candidates for admission to the bar in this state, and perhaps in others: it cannot, therefore, be surprising that so many who have obtained licences to practice, discover upon their entrance into the profession a total want of information respecting the laws of their own country. A misfortune which their utmost diligence thereafter is required to remedy. A misfortune unavoidably attendant on that obscurity into which the laws of this state have been thrown, by partial editions, and by the loose and slovenly manner in which the acts of the legislature are stitched together, and dispersed throughout the country in unbound, and even uncovered sheets, more like ephemerons than the perpetual rules of property, and of civil conduct in a state.
These inconveniences had been sensibly felt by the Editor, whose utmost diligence had been in vain applied to their removal, when he was unexpectedly called to fill the chair of the professor of law in the university of WILLIAM AND MARY, IN VIRGINIA, then vacant by the resignation of a gentleman,1 to whose advice and friendly instruction he was indebted for whatever talent he might be supposed to possess for filling the office of his successor. Great as he felt the distance between himself and his predecessor, the partiality of his friends persuaded him to accept an office which he was by no means prepared to discharge to his own satisfaction. To prepare a regular course of original lectures would have required some years of study, and of labour, not only in collecting, but in methodizing and arranging his materials. The exigencies of the office did not permit this: he was obliged, in the short period of two or three months, to enter upon the duties of it: he determined to be useful to his pupils as far as his best endeavours would enable him to be so, without regarding the form in which his instructions might be conveyed. The method, therefore, which he proposed to himself to adopt, was to recur to Blackstone’s Commentaries as a text, and occasionally to offer remarks upon such passages as he might conceive required illustration, either because the law had been confirmed, or changed, or repealed, by some constitutional or legislative act of the Federal Government, or of the commonwealth of Virginia. This method he was led to adopt, partly, from the utter impracticability of preparing a regular course of lectures, for the reasons before mentioned; and, partly, from the exalted opinion he entertained of the Commentaries as a model of methodical elegance and legal perspicuity: a work in which the author has united the various talents of the philosopher, the antiquarian, the historian, the jurist, the logician and the classic: and which has undergone so many editions in England, Ireland, and America, as to have found its way into the libraries of almost every gentleman whether of the profession, or otherwise; and from general acceptance, had become the guide of all those who proposed to make the law their study. By these means he proposed to avail himself not only of the Commentator’s incomparable method, but of his information as an historian and antiquarian, his classical purity and precision as a scholar, and his authority as a lawyer; without danger either of loss, or depreciation, by translating them into a different work; he was also encouraged to hope that by these means he might render that incomparable work a safe, as well as a delightful guide to those who may hereafter become students of law in this commonwealth.
It was foreseen, that the execution of this plan would not consist merely of short explanatory notes, and references to our state code: but that the prosecution of it would not unfrequently lead to inquiries, and discussions of subjects which neither form a part of, nor even bear any relation to, the laws of England. The CONSTITUTION of the UNITED STATES of America, and the particular Constitution of the state of VIRGINIA, it was supposed would afford a field of inquiry which yet remained to be fully explored; it was considered that it would be necessary to investigate the nature of that compact which the people of the United States have entered into, one with another; to examine the powers entrusted to those who exercise the government, and to satisfy ourselves of their just extent and limits; to consider the connection between the federal government, and the state governments; to trace with accuracy, as far as the novelty and intricacy of the subject would permit, their respective rights, dependencies, and boundaries; to survey, with attention, the whole complicated structure of our government, and consider how far the parts of a machine so immense, intricate and complex, are likely to correspond, or interfere with the operations of each other. Such a discussion would necessarily lead to an examination of the principles of our government, in the course of which a dissent from the received maxims of that which we had shaken off would be unavoidable; and in such an investigation it was conceived that it would be more proper to rely on the authority of the American Congress, or of the several State Conventions, than the opinions of any speculative writers on government whatever: inasmuch as the declarations and acts of those BODIES were the foundation of the late revolution, and form the basis of the several republics that have been established among us; and have thus become constitutional declarations on the part of the PEOPLE, of their natural, inherent, and unalienable rights. From this circumstance, those acts and declarations might be considered, in our own republic at least, as settling the controversy between speculative writers, in all cases to which they extend. Mr. Locke, for example, contends that all power is vested in the people: this opinion is controverted by some, and doubted by other eminent writers on government, among whom it is sufficient to mention the learned Grotius, and the author of these Commentaries. Were it required to investigate this question hypothetically, it might be necessary to recur to the arguments on both sides, and decide according as they may be found to preponderate, since no preference could be given to the bare authority of either of these great names. But when we find this principle asserted by CONGRESS in the Declaration of Independence; and by the CONVENTION of VIRGINIA in our Bill of Rights; insisted on, again, by the CONVENTION of the STATE upon the ratification of the Constitution of the United States; and finally acknowledged by the AMENDMENTS proposed to the Constitution by Congress, and since ratified by the several states, the contest, as it applies to the principles of our government, is at an end; and we are authorised to insist on the affirmative, with whatever ingenuity the opposite argument may be maintained.
The CONSTITUTION of VIRGINIA formed under circumstances which have occasioned its authority to be doubted, even by one of the most enlightened politicians that this country has produced, it was also supposed, would require a full and candid discussion. Framed at a time when America might be supposed to be in the cradle of political science, it will not be surprising if many defects have been discovered in it: to examine them impartially, and to propose a remedy for them, or at least for the most obvious and dangerous, it was presumed, could not be an unprofitable undertaking, and would naturally fall in with the plan which the editor proposed to adopt.
The authority and obligation of the COMMON LAW of England in the United States, was another subject, which it was deemed both necessary and proper to inquire into. If the arguments upon which the learned commentator founded his opinion, that “the common law of England, as such, had no allowance or authority in the British American colonies,” antecedent to the revolution which separated them from each other, seem questionable, on the one hand, the opinion that it is NOW the general law of the land in the United States, in their collective and national capacity and character, appears not less questionable on the other.