with Notes of Reference (1803)
St. George Tucker
PROFESSOR OF LAW, UNIVERSITY OF WILLIAM AND MARY, AND
ONE OF THE JUDGES OF THE GENERAL COURT IN VIRGINIA.
WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES;
AND OF THE COMMONWEALTH OF VIRGINIA. IN FIVE VOLUMES (1803)
With an appendix to each volume, containing short tracts upon such subjects as appeared necessary to form a connected view of the laws of Virginia, as a member of the federal union.
Translation of greek, latin, italian and french quotations (with some modifications) by J. W. Jones, Esq. (1823). Footnotes have been converted to chapter end notes.Spelling has been modernized.
This electronic edition
© Copyright 2003, 2005 Lonang Institute
BE it remembered, That on the ninth day of May, in the twenty-seventh Year of the Independence of the United States of America, William Young Birch, and Abraham Small, of the said District, have deposited in this Office the Title of a Book, the right whereof they claim as Proprietors, in the words following, to wit:
|“Blackstone’s Commentaries: with Notes of Reference, to the Constitution and Laws of the Federal Government of the United States, and of the Commonwealth of Virginia. In Five Volumes. With an Appendix to each Volume, containing, Short Tracts upon such Subjects as appeared necessary to form a connected view of the Laws of Virginia, as a Member of the Federal Union, By St. George Tucker, Professor of Law, in the University of William and Mary, and one of the Judges of the General Court in Virginia.”|
In Conformity to the Act of the Congress of the United States, intituled, “An Act for the Encouragement of Learning, by securing the Copies, of Maps, Charts, and Books, to the Authors and Proprietors of such Copies during the times therein mentioned,” and also, to an Act entituled, “An Act supplementary to an Act, entituled, an Act for the Encouragement of Learning, by securing the Copies of Maps, Charts, and Books, to the Authors and Proprietors of such Copies, during the Times therein mentioned. And extending the Benefits thereof to the Arts of designing, engraving, and etching historical, and other Prints.” (L.S.) D. CALDWELL,
Clerk of the District of Pennsylvania.
The Editor having procured a copy of a late Edition of Blackstone’s Commentaries, published in London, by Edward Christian, Esq. has made a selection of such of the Notes, contained in that Edition, as appeared to him most likely to be of use to an American Student… In the Second Volume, the selection has been more copious than in any of the others: they are distinguished, by his name being subjoined to the end of each Note.
MAY 12, 1803.
To the Reader
Messrs. Pleasants and Pace, having, since this Edition of the Commentaries has been in the press, published a new collection of the LAWS OF VIRGINIA, containing, not only, all the acts printed in the edition of 1794, but likewise, a very considerable number of acts passed since that period ; the Editor avails himself of the opportunity, thereby afforded him, to assist the researches of the student, in consulting any act contained in that collection, which may be referred to in the notes, or appendices to this work. For this purpose, he has formed the following table, shewing, the correspondence between the edition of 1794, and subsequent sessions acts, and the chapters in the latter collection ; by means of which, any act contained in that collection, and referred to in the following notes, may readily be found.
When a work of established reputation is offered to the public in a new dress, it is to be expected that the Editor should assign such reasons for so doing, as may not only exempt him from the imputation of a rash presumption, but shew that some benefit may be reasonably expected to result from his labours.
Until the Commentaries on the laws of England by the late Justice Blackstone made their appearance, the students of law in England, and its dependencies, were almost destitute of any scientific guide to conduct their studies. “A raw and unexperienced youth,” he remarks, “in the most dangerous season of life is transplanted on a sudden into the midst of allurements to pleasure without any restraint or check, but what his own prudence can suggest; with no public direction in what course to pursue his inquiries; no private assistance to remove the distresses and difficulties which always embarrass a beginner. In this situation he is expected to sequester himself from the world, and by a tedious lonely process to extract the theory of law from a mass of undigested learning.” “How little, therefore, is it to be wondered at” he adds, “that we hear of so frequent miscarriages, that so many gentlemen of bright imaginations grow weary of so unpromising a search; and that so many persons of moderate capacity confuse themselves at first setting out, and continue ever dark and puzzled during the remainder of their lives!” Such is the picture which our author gives us of the difficulties which at that time attended the study of the law, even in those Inns of court whither those who sought to acquire a knowledge of the profession, generally repaired for instruction. On the appearance of the Commentaries, the laws of England, from a rude chaos, instantly assumed the semblance of a regular system. The viginti annorum lucubrationes it was thought might thereafter be dispensed with, and the student who had read the Commentaries three or four times over, was lead to believe that he was a thorough proficient in the law, without further labour, or assistance; the crude and immethodical labours of Sir Edward Coke were laid aside, and that rich mine of learning, his Commentary upon Littleton, was thought to be no longer worthy of the labour requisite for extracting its precious ore. This sudden revolution in the course of study may be considered as having produced effects almost as pernicious as the want of a regular and systematic guide, since it cannot be doubted that it has contributed to usher into the profession a great number, whose superficial knowledge of the law has been almost as soon forgotten, as acquired. And this evil we may venture to pronounce has been much greater in the Colonies dependent upon Great-Britain, than in England itself, for the laws of the Colonies not being at all interwoven with the Commentaries, the colonial student was wholly without a guide in some of the most important points, of which he should have been informed; admitting that he were acquainted with the law of England upon any particular subject, it was an equal chance that he was ignorant of the changes introduced into the colonial codes; which either from inexperience, inattention, or other accidental circumstances have undergone a variety of modifications, provisions, suspensions, and repeals, in almost all the colonies dependent upon great Britain. The Commentaries, therefore though universally resorted to as a guide to the colonial student, were very inadequate to the formation of a lawyer, without other assistance; that assistance from the partial editions of colonial laws (at least in Virginia) was extremely difficult to be obtained. Few gentlemen, even of the profession, in this country, have ever been able to boast of possessing a complete collection of its laws; the Editor confesses that his own endeavours to procure one have hitherto been ineffectual.
Not many years after the reception of the Commentaries into the libraries of gentlemen of the profession, and the adoption of them as a guide to those who wished to acquire it, the revolution which separated the present United States of America from Great Britain took effect; this event produced a corresponding revolution not only in the principles of our government, but in the laws which relate to property, and in a variety of other cases, equally contradictory to the law, and irreconcileable to the principles contained in the Commentaries. From this period, that celebrated work could only be safely relied on as a methodical guide, in delineating the general outlines of law in the United States, or at most, in apprizing the student of what the law had been; to know what it now is, he must resort to very different sources of information; these, although the period which has elapsed since their first introduction is scarcely more than twenty years, are now so numerous, (at least in this state) and so difficult to be procured, that not one in fifty students of law has at this day any chance of perusing them.
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. The Editor has therefore bestowed some considerable attention on the subject; and though he cannot flatter himself that his researches and conclusions will prove satisfactory, or convincing, to all parties, he cannot but persuade himself that those who impartially seek after truth, will incline to the same opinion with himself.
And, again; although the common law is by express legislative adoption the law of the land in Virginia, under certain restrictions, yet it has from time to time undergone such a variety of amendments, both statutory, and constitutional, that no student without some guide to assist him, can possibly know what to receive, or what to reject; it was, therefore, thought indispensibly necessary to advertise him in what cases its authority and obligation have been either in part diminished or totally destroyed by such amendments. And lastly, as the common law is a collection of general customs, it might not be amiss to inquire whether particular customs have any, or what force, among us.
The frequent recurrence to the statute law of England, in the Commentaries, might lead an unwary student to presume that all its provisions were in force in this country; or if he had heard that a part of the statutes only, were received and acknowledged as binding upon us in this commonwealth, he would be left in a state of the most absolute uncertainty respecting them; neither knowing which to receive, nor which to reject, as in the case of the provisions of the common law just mentioned. If he had been informed of the positive repeal of all British statutes by a late act of the legislature of Virginia, he might be tempted to suppose that it would be merely loss of time to peruse the abstract of them in the Commentaries, although a short marginal note, might instruct him, perhaps, that they still are retained in our code, and form an important part of our jurisprudence. True it is, those provisions have no longer authority as acts of the British parliament: but a great number of them have been expressly adopted by our legislature; others have undergone some alteration the better to adapt them to our use; in some the very words of a statute have been retained, whilst in others the phraseology has, perhaps more from inadvertence than design, been changed; a considerable number have also been either tacitly, or expressly, rejected, or repealed. To a student pursuing a systematical course of study it must be highly important to be delivered from a labyrinth of uncertainty, by casting his eye to the bottom of the page, and there finding whether the statute he is considering still forms a part of, or has been expunged from, that code, which he wishes to understand.
Not only the regulations contained in the statutes, but many of the rules of the common law have been occasionally interwoven in, or where doubtful, explained by legislative acts; thereby ascertaining their meaning, and placing their validity beyond a doubt. To point out these cases, might save the student infinite labour, time, and error.
But, the almost total change in the system of laws relative to property, both real and personal, in Virginia, appeared more particularly to demand a strict scrutiny, and investigation; in the course of which it might not only be necessary to remark the more obvious, but the imperceptible, and perhaps unintended, changes, wrought by a loose, or incautious phrase, or reference. Instances of this kind have unfortunately more than once occurred in our code, and are the unavoidable result of frequently tampering with the rules of property.
The regulations of our internal police, the organization of our courts of judicature, both in the federal and state government; their respective jurisdictions, and the mode of proceeding therein; are moreover subjects, concerning which the student can expect to receive very little information from the Commentaries, without the aid of notes to direct his attention to such as have been established here with similar powers. The courts of judicature in England have in general afforded the models of ours; but local circumstances have necessarily introduced a variety of new regulations, which by imperceptible and gradual changes, have lost all resemblance to the British original.
But independent of those alterations in the system of our jurisprudence to which local circumstances might be supposed to have given birth, there are a great number which appear to be merely the suggestions of political experiment, or a desire to conform to the newly adopted principles of republican government; among these we may reckon the abolition of entails; of the right of primogeniture; of the preference heretofore given to the male line, in respect to real estates of inheritance; and of the jus accrescendi, or right of survivorship between joint-tenants; the ascending quality communicated to real estates; the heretability of the half-blood; and of bastards; the legitimation of the latter, in certain cases; and many other instances in which the rules of the common law, or the provisions of a statute, are totally changed.
Many parts of the laws of England are also either obsolete, or have been deemed inapplicable to our local circumstances and policy; these it might be proper to recommend to the perusal of the student, rather as matter of curiosity, than of necessary information to him as an American Lawyer. To this class might be referred the learning respecting ancient feudal tenures; the whole doctrine of copy-holds, and tithes, and whatsoever relates to special or particular customs. The constitution of the crown and parliament, with their several rights, prerogatives, and privileges, would at first appear to fall into the same class: but it was conceived that it might not be uninstructive to shew how far they have been rejected in our own constitutions; or where retained, in what manner they have been distributed thereby. In some cases it would be found that they have been confided solely to the President of the United States; that in others they are participated by the Senate, as an executive council; in other instances, Congress, taken collectively, are the depositaries of the sovereign will and authority of the people; and, if the Editor’s partiality does not deceive him, it will be found, upon a candid investigation of the subject, that wherever the constitution of the United States departs from the principles of the British constitution; the change will, in an eminent degree, contribute to the liberty and happiness of the people, however it may diminish the splendour of the government, or the personal influence of those who administer it. For these reasons, it was conceived, that a more particular attention might be proper to those parts of the Commentaries, which treat on these subjects, than at first view might appear to be necessary.
The subject of domestic slavery, which, happily for the people of England, it was unnecessary to treat of in the Commentaries, is one, which a student of Law in Virginia ought not to pass over without attention. How far the condition of that unfortunate race of men, whom the unhappy policy of our forefathers has reduced to that degraded condition, is reconcileable to the principles of a free republic, it might be hard for the advocates of such a policy to shew. It was, at least, presumed that in this enlightened age, when philanthropy is supposed to have been more generally diffused through the civilized nations of the earth than at any former period; and in this country, where the blessings of liberty have been so lately, and so dearly purchased, it could not be deemed improper to inquire whether there was a due correspondence between our avowed principles, and our daily practice; and if not, whether it were practicable, consistently with our political safety, to wipe off that stigma from our nation and government. Though the rights of nature, and the dictates of humanity, might heretofore have yielded to the suggestions of interest, the prejudices of education, or the apprehensions of timid politicians; it was still hoped to be demonstrable that reason and justice are reconcileable to our political and domestic interests.
The late revision and republication of the laws of this commonwealth, might at first view appear to supersede the necessity of particular references thereto; the subjects being generally arranged under their proper heads, in bills of considerable length, it might be supposed, would enable the student to consult the statutes, and form his own notes of their operation. But the inconvenience formerly hinted at, arising from partial, instead of complete editions of our statute law, has full operation in consequence of the omission of a multitude of acts, whose various and often contradictory provisions (so far as they could be reconciled) were consolidated into single bills; in the formation of which the date of the original law, and not only the date, but the alterations produced by amendatory acts, have unavoidably been lost sight of. Hence, the late code can only be considered as operating upon cases subsequent to the revisal; for a knowledge of the law antecedent thereto, the student must hunt through five other partial compilations, or through the scattered pages of the unbound Sessions’s acts, scarcely less difficult to be collected than the leaves of the Sybils. 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 knowledge to the constitution itself. Yet the study of the constitution is not more necessary to the right understanding of the force and obligation of any positive law, than the study of the law, as a science, is to a full and perfect understanding of the constitution: for the rules of law must not unfrequently be consulted, to explain the principles contained in the constitution: thus, they mutually contribute to the due investigation and understanding of each other.
In a government founded on the basis of equal liberty among all its citizens, to be ignorant of the law and the constitution, is to be ignorant of the rights of the citizen. Ignorance is invariably the parent of error: where it is blended with a turbulent and unquiet temper, it infallibly produces licentiousness, the most terrible enemy to liberty, except despotism: and even more terrible than despotism itself, were it not invariably short lived, whilst the other endures for ages; on the contrary, when ignorance is united with supineness, liberty becomes lethargic, and despotism erects her standard without opposition. An enlightened people, who have once attained the blessings of a free government, can never be enslaved until they abandon virtue and relinquish science. These are the nurses of infant liberty and its fostering genii when matured. To seek their favour is to secure it; to neglect, is infallibly to lose it.
If an acquaintance with the constitution and laws of our country be requisite to preserve the blessings of freedom to the people, it necessarily follows that those who are to frame laws or administer the government should possess a thorough knowledge of these subjects. For what can be more absurd than that a person wholly ignorant of the constitution should presume to make laws pursuant thereto? or that one who neither understands the constitution nor the law, should boldly adventure to administer the government! Yet such instances occur not unfrequently in all countries, and the danger that they will frequently occur in this, is perhaps greater than in any other. The road to office, in most other countries is filled with a thousand turnpikes, which are rarely opened but to the rich and powerful. These possess at least the means of education and information. With us it is equally open to all; but men of talents and virtue are not always the foremost in the course; persons of this description are generally more backward, than those of inferior pretensions, to the confidence of the people; a confidence which, if they do not, they are infinitely more liable to abuse, than if their minds had been properly enlightened by study and application.
Not only the study of the constitution, but an acquaintance with the civil history of our country, seems necessary to constitute a thorough knowledge of its laws. The several epochs required to be well known, when the laws of England were the sole rule of jurisprudence among us; or were interwoven with the laws of our own institution; which last were nevertheless considered in a subordinate degree of authority; or when the authority of the former was wholly superseded, and the latter substituted entirely in their stead, without any check or controul; and, lastly, when by an entire change of the government a new order of things was introduced, and the authority of a part of the laws of the commonwealth were submitted to the controul of the federal constitution, and jurisprudence; otherwise the student can never be certain of the validity of a law, but must wander perpetually in the mazes of doubt and error. To assist his researches in all these respects has been particularly the object of the Editor’s labours; in submitting the result of them to the public, he is not without hope that the design will be approved, however the execution may fall short of his own wishes, or the public expectation.St. Geo. Tucker.
July 10th, 1802.
N. B. The chapters in Pleasant’s and Pace’s collection correspond with the chapters, as numbered in the edition of 1794, from chap. 1, to chap. 181, inclusive: the correspondence between the succeeding chapters and the Sessions acts, as published annually, will appear below.2
USED IN THE NOTES AND APPENDICES TO THIS EDITION.
C. U. S. Constitution of the United States.
L. U. S. Laws of the United States.
A. C. U. S. or Amendts. C. U. S. Amendments to the Constitution of the United States.
C. V. Constitution of Virginia.
B. R. or B. R. V. Bill of Rights, of Virginia.
V. L. or L. V. Laws of Virginia.
Sess. Acts. Sessions Acts, of Congress, or of the General Assembly of Virginia.
Purvis. Compilation of the Laws of Virginia, by Purvis, or Pervis.
L. V. Edi. 1733. 1753. 1769. 1785. 1794. The several Editions of the Laws of Virginia, published by authority, in those years, respectively.
N. B. The references to the laws of the United States correspond with the Chapters, as numbered in the Acts of the several Sessions, which have been distributed according to Law. The Acts of 2. Cong. 2. Sess. in Swift’s Edition are numbered differently: there is a variance of 44 Chapters in the numbering of the Acts of that Session; but, any Act of that Session referred to in this Edition, may be readily found by adding 44 to the number of the Chapter in that Edition.
|Sessions Acts||Pace’s Edition||Sessions Acts||Pace’s Edition||Sessions Acts||Pace’s Edition||Sessions Acts||Pace’s Edition|
|1795 c. 1||c. 182||c. 25||c. 216||c. 14||c. 250||c. 71||c 284|
|c. 2||c. 183||c. 27||c. 217||c. 15||c. 251||1801 c. 1||c. 285|
|c. 3||c. 184||c. 28||c. 218||c. 19||c. 252||c. 2||c. 286|
|c. 5||c. 185||c. 42||c. 219||c. 23||c. 253||c. 3||c. 287|
|c. 8||c. 186||c. 4.5||c. 220||1799 c. 1||c. 254||c. 4||c. 288|
|c. 9||c. 187||1797 c. 2||c. 221||c. 2||c. 255||c. 5||c. 289|
|c. 10||c. 188||c. 4||c. 222||c. 3||c. 256||c. 7||c. 290|
|c. 11||c. 189||c. 5||c. 223||c. 8||c. 257||c. 8||c. 291|
|c. 13||c. 190||c. 6||c. 224||c. 11||c. 258||c. 9||c. 292|
|c. 14||c. 191||c. 7||c. 225||c. 17||c. 259||c. 10||c. 293|
|c. 15||c. 192||c. 8||c. 226||c. 33||c. 260||c. 11||c. 294|
|c. 16||c. 193||c. 9||c. 227||c. 34||c. 261||c. 12||c. 295|
|c. 17||c. 194||c. 20||c. 228||c. 46||c, 262||c. 13||c. 296|
|c. 18||c. 195||c. 22||c. 229||c. 49||c. 263||c. 14||c. 297|
|c. 19||c. 196||c. 23||c. 230||c. 58||c. 264||c. 25||c. 298|
|c. 20||c. 197||c. 24||c. 231||c. 59||c. 265||c. 23||c. 299|
|c. 54||c. 198||c. 25||c. 232||c. 64||c. 266||c. 15||c. 300|
|1796 c. 1||c. 199||c. 26||c. 233||1800 c. 2||c. 267||c. 16||c. 301|
|c. 2||c. 200||c. 23||c. 234||c. 4||c. 268||c. 17||c. 302|
|c. 5||c. 201||c. 24||c. 235||c. 6||c. 269||c. 18||c. 303|
|c. 6||c. 202||c. 36||c. 236||c. 12||c. 270||c. 19||c. 304|
|c. 7||c. 203||c. 44||c. 237||c. 38||c. 271||c. 21||c. 305|
|c. 8||c. 204||c. 55||c. 238||c. 39||c. 272||c. 24||c. 304*|
|c. 9||c. 205||c. 65||c. 239||c. 40||c. 273||c. 23||c. 306*|
|c. 11||c. 206||c. 108||c. 240||c. 43||c. 274||c. 84||c. 307*|
|c. 12||c. 207||1798 c. 1||c. 241||c. 44||c. 275|
|c. 13||c. 208||c. 2||c. 242||c. 51||c. 276||October||Appx.|
|c. 16||c. 209||c. 3||c. 243||c. 53||c. 277||1782 c. 19||c. 1|
|c. 17||c. 210||c. 6||c. 244||c. 54||c. 278||1784 c. ||c. 2|
|c. 18||c. 211||c. 7||c. 245||c 58||c. 279||c. 3|
|c. 19||c. 212||c. 9||c. 246||c. 59||c. 280||c. 4|
|c. 20||c. 213||c. 10||c. 247||c. 60||c. 281||1792 c. 20||c. 5|
|c. 23||c. 214||c. 11||c. 248||c. 61||c. 282||c. 27||c. 6|
|c. 24||c. 215||c. 13||c. 249||c. 70||c. 283|
* There is a small error in the numbering of these three chapters in Pleasant and Pace’s Edition; they are here referred to as numbered.