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THE

ANALECTIC MAGAZINE.

DECEMBER, 1818.

ART. I.-Part of an Introductory Lecture; read by Charles W. Hare, Esq. Professor of Law, in the University of Pennsylvania, in the month of April, 1817.

THE

HE Trustees of the University, having resolved to fill the chair of Professor of Law, in this institution, and having done me the honour to appoint me the Professor, it is incumbent on me, before commencing the performance of the duty, to explain the motives which I conceive have actuated the gentlemen, who compose the board of trustees, in at this time filling the office, to justify myself for attempting an undertaking so far above my ability; and to give a general idea of the nature of the effort which I shall make to accomplish it.

The importance of the study of legal literature, must be obvious to every gentleman, in every country, in which regular systems of government are approved, or in which taste, science, or commerce is cultivated. In every age the expansion of the human mind may be traced along with the progress of its legislation. No where has the knowledge of the arts, either as they gratify the imagination, or administer to the uses of society, been extended, manners polished, or pure moral systems adopted, until the law had assumed the shape of a science, and its professors had been honoured and rewarded. The interest of all history commences, indeed, at the precise point at which the law has been methodised and refined.— Who values Athens or Sparta before the time of Solon or Lycurgus? Who perceives in Roman narrative more than rude adventure, until the laws of Greece had been embodied in Roman jurisprudence? And unless that system of jurisprudence, polished as it afterwards was, by experience and philosophy, had been resuscitated at Amalphi, who will pronounce that the long and barbarous darkness which succeeded the extinction of ancient learning, might not have been continued.

The necessity of general rules, in all moral and political theories or systems, is incontrovertible. While any one right is established, or action forbidden, justice requires that all rights of the same kind be sustained, and all similar actions prohibited. Such rules too, it is evident, must be as multifarious and extensive as the wants and passions of man. They must be formed with a view to

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general, rather than particular consequences, or they would become either too minute to be followed, or arbitrary in their nature and application; and if thus necessarily extensive and multifarious, or if informing them, all our moral, political, and social relations must be taken into consideration, surely it follows, that until methodised into the form of a science, they cannot be understood, nor until incorporated into the minds of the people by discussion and instruction, either respected or obeyed.

Accordingly, in almost all civilized countries, institutions for the dissemination of legal learning have been patronized by public authority. Under the Roman emperors, the science was taught in most of the distinguished cities of the empire.-The celebrated institutes of Justinian are addressed to the youth ambitious of distinction in the profession. Cupidæ legum Juventuti. Nor did the emperor, under whose auspices the work was written, himself disdain to animate their diligence, and promise to reward it by preferment in the state.

'Summa itaque ope et alacri studio has leges nostras accipite, et vosmetipsos sic eruditos ut spes vos pulcherrima foverat toto legitimo opere perfecto, posse etiam nostram rempublicam in partibus ejus vobis credendis gubernari.' Accept, therefore, these our laws, with the greatest zeal and most diligent study, and show yourselves so learned in them, that having regularly completed the work, you may cherish the pleasing hope, that possibly in our state, parts of the authority of government, may be committed to your care, are the concluding words of the proemium.

In nearly all the Universities of modern Europe, the study of the civil law is considered as a necessary preparation for service in the civil departments of government. Besides the inns of court in England, which sir Edward Coke styles a juridical university, where lectures are often delivered, professorships in the law are established at Oxford and Cambridge, and it is to the Vinerian chair established in the former institution, that England and this country are indebted in the commentaries of sir William Blackstone, for a more luminous exposition of the principles of law and government, than probably either in ancient or modern times had ever before appeared..

In Pennsylvania, before the revolution, the interests of classical learning were, perhaps, not less attended to, than they have been since that period; but our legal notions were so entirely restrained by British authority, our jurisprudence so far as it was peculiar to ourselves, comparatively so simple, and our young men destined to the profession, so frequently educated abroad, as to furnish obvious reasons why no effort was made to render the teaching of youth in this science, a branch of public instruction. Immediately, however, after the adoption of the present constitution, the chair, from which I have the honour to address you, was established; and the late James Wilson, Esq. not less distinguished as an ora tor and patriot, than as a lawyer, and then one of the judges of the

supreme court of the United States, was appointed the professor. He composed and delivered two courses of lectures, which have since been published, and which are certainly among the best original law works of which this country boasts. From what cause he relinquished the undertaking is not known, but from the period of his death, the chair has remained vacant.

The propriety of again filling it, may, I think, be shown from various considerations.

The laws peculiar to Pennsylvania and the United States, both as they arise from legislative acts, and judicial decisions, have been so much augmented, as to require frequently to be analysed and digested.

The multitude of constitutional questions, which have arisen and been settled, give a construction to the constitution not always perceivable in its letter, or in the works which were written contemporaneously with its adoption.

Owing to the peculiar mode in which the lands of this state have been disposed of, the courts have been called on to erect a system, which now regulates the title to the greater part of the landed property of the country, and which though founded on the principles of British jurisprudence, it would be in vain for the unpractised student there to attempt to develop, or perhaps for the mature lawyer to understand, without personal experience, or systematising the decisions.

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The precise jurisdiction of the different courts, can only now be ascertained by a reference to the constitution and acts of the legis lature, which without a knowledge of the practice which has been adopted under them, will not easily gratify the wishes of the inquirer.

Policy and humanity, have been supposed to combine to abolish the greater part of all, that related to punishment in the ancient criminal code, and have, in some important points, changed the definition and character of crimes.

The laws of descent, and for the distribution of intestates estates, have been altered, and entirely new principles, in regard to them, adopted.

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The inconvenience of applying the old common law forms, to the novel situation and peculiar modes of business in this country, has led to important alterations in those forms, and in the manner of prosecuting and defending actions.ro do

The system of conveyancing in England, unnecessarily complex, has been simplified, and modes of registering deeds established, unknown to the common law.

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The practice of the courts has been very much altered, not only by legislative acts, to which they are obliged to conform; but from the actual abolition, by tacit consent of the practitioners, of the greater part of the system of English special pleading and the absence of Chancery powers has long compelled the judges to reconcile to common law forms, the means of establishing equitable rights,

which, as they are not recognized at law, could not be enforced in any manner which the common law of England acknowledges.

The jurisprudence of Pennsylvania then, it will readily be perceived, while it has become in a degree national and peculiar, cannot yet have been methodised into a form entirely scientific, or rendered always, without personal experience, intelligible; and of course it would seem that filling an office, which makes it the peculiar duty of the officer, to give it such a shape, may be of great utility.

It is not, however, only with a view to a general performance of this duty, that I have ventured to accept the post which has been assigned me.

It is evident, and admitted, that neither the common law, nor those who administer it, are now as much as formerly, the objects of public regard and attachment.

My predecessor, in his first address, assigned as the principal reason of his high reverence for the American character, that it was eminently distinguished by the love of liberty and the love of law; and he rejoiced in his appointment, because 'it gave him the best opportunity to discover, study, develop, and communicate many striking instances on which this distinguished character was founded.'

Still glowing with the warmth excited by the struggle in which he had taken an honourable part, and knowing that the principles on which that struggle was founded, grew out of just notions of the law, it was not wonderful, he should ascribe the successful achievements of his countrymen in support of liberty, to their attachment to the rules which at once restrained and secured it.

"In free countries,' he continues, in free countries especially, that boast the blessings of a common law, springing warm and spontaneous from the manners of the people, law should be studied and taught as an historical science.'

It is my purpose, in the humble endeavours I shall here make, to attempt to illustrate the laws and institutions of the country, in the manner which I shall conceive best adapted to support and defend them; to show the causes in which they originated; to mark the improvements which modern refinement has made, and to reconcile them to the principles of sound policy, just liberty, and natural reason.

In making such an effort, it is obvious that it will be proper at once to consult the interest created by novelty, the course of study best adapted to the mind of the student, and subjects sufficiently free from technical difficulty, to excite the attention of the liberal inquirer.

With a view to meet these points, I have determined to treat on the following subjects, each of which will require one course of lectures.

1. Natural jurisprudence, or the science of right and wrong, as discoverable by human reason, compared with, illustrated by, and carried into the law.

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2. Inter-national jurisprudence, or the laws which regulate the intercourse of different societies or nations, the parts and prerogatives of sovereignty, the duties of sovereigns, and the rights of government, the different forms of government, and particularly of the theory and practice of the constitution of the United States and state of Pennsylvania.

3. All that is peculiar to, and distinguishable in the jurisprudence of the United States and Pennsylvania, from that system from which our laws and institutions take their origin, and which is recognized by the common parent of these States.

Natural jurisprudence I shall consider under the following

heads.

1. The duties of man towards God.

2. His duties towards himself.

3. His duties in the relations of husband and wife.

4. His duties in the relations of parent and child, brother and sister, and member of a family.

5. His duties in the relation of guardian and ward.

6. His duties in the relation of master and servant, and principal and agent.

7. His duties in the relation of heir, executor, and administra.tor.

8. His duties in the relation of trustee, and cestui que trust. 9. Of professional duties, or the duties of divines, physicians, and lawyers.

10. Of the duties of partners.

11. Of the duties which result from a relation to particular trades and occupations, societies and corporations.

12. Of the duties of magistrates, and all who are in public authority.

13. Of the duties of subjects and citizens of the State..

14. Of their duties towards one another.

15. Of the duties of the military state, and those which arise from a state of war.

16. Of the duties of aliens and captives.

17. Of the rights of property and dominion.

18. Of the several species of contracts, the duties created by contracts, those which relate to the means of acquiring property, and those which result from its possession.

19. Of the different modes of dissolving obligations created by contract, the interpretation of them, and the consideration required for them.

20. Of equity as contradistinguished from law,

21. Of duties in the use of speech, vows, and oaths. 22. Of the rights and duties growing out of necessity. 23. Of the rights of punishment.

24. Of the offences requiring punishment.

The subdivisions of the two following courses will be mentioned in the introductory lecture, which will be delivered at the com

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