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ON THE STUDY OF THE CONSTITUTION AND LAWS OF THE
UNITED STATES. + 1. Let no young gentleman, who is ambitious to be considered a scholar, a statesman, or a well informed citizen, indulge in the general prejudice against the law, pr suppose that its study is dry and unfruitful. A knowledge of that constitution, and of those laws, under which the people of the United States have the happiness of enjoying their freedom is immediately interesting to every citizen of America; and without that knowledge, no man, however superior may be his condition, can properly discharge the duties of public or private life.
2. To be destitute of that knowledge, in this peculiarly happy country, is to the aged' a misfortune, and to the young disgraceful. No man's education is complete, until he is acquainted with the local constitutions of his native country. Without that, he cannot even judge of the title by which he holds his land, nor of the rights which he may exercise over it; nor can he well perform the important duties of an arbitrator, a juror, a representative, or à justice of the peace, or of a private citizen, wher called upon to preserve good order, to suppress the idle, and encourage the industrious.
3. Happy would it be for the United States, if every man, not thoroughly acquainted with our laws and constitutions, would have the good sense and patriotism to decline being a legislator, until, like the divine, the physician, the lawyer, the merchant, and the apprentice, he could give some attention to that art, in which he is about to exercise his labour, Then might the distorted and ill shapen system of our statate law, in time cast off its fantastic defects, and assume a form of well proportioned and majestic simplicity.
4. “ If there are any still wedded to monastic prejudice, who can enter" tain a doubt, how far this study is properly and regularly academical, as such persons, I, am afraid, either have not considered the constitution " and design of an university, or else think very meanly of it. That a " science which distinguishes the criterion of right and wrong ; which 56 teaches to establish the one, and prevent, punish, or redress the other; " which employs in its theory, the noblest faculty of the soul, and exerts, " in its practice, the cardinal virtues of the heart; a science which is ki universal in its use and extent, accommodated to each individual, yet 1: comprehending the whole .community that a science like this, should "even be deemed unnecessary to be studied in the university, is matter of ( astonishment and concern. Ethics are confessedly a branch of acade". mical learning; and JURISPRUDENCE, or a knowledge of the laws, is the " principal and most perfect branch of Ethics:***
Of Law in General. 1. Law, in its most general sense, is a rule of action prescribed by a superior, which the inferior is bound to obey. In its confineci sense, it is a rule of human action. Municipal law is a rule of civil conduct, prescribed
ị The following summary of some important points of Law, which are essential to the good order and happiness of society, were drawn up, at our request, by JOSEPH D. FAY, Esq. Counsellor at Law, of this City. It contains a concise outline of the system of Jurisprudence, which unite the inbabitants of this favoured country, in the bands of society: They are the Rule of conduct for every class and denomination of inca, and will be read with equal advantage, by the young and the old. It was considered that a few vacant pa ges could not be devoted to a more useful subject, than to these legal principles, which are necessary to be known toy all, to form the moral man, and the exemplary citizen.
by the superior power of a state. There is also the law of nature, the revealed law, and the law of nations.
2. The municipal law of America is composed of two parts, the lex scripta, and the lex nori scripla; in other words, the common law, and the statute law.
3. The United States exhibit the first instance, in the annals of the world, of an original written compact, formed by the free voices of individuals, uniting in one bond of society. The confederated constitution is the written law of the land, as far as it goes, and is nothing more than a compact, made by the people with the governors, whom they appoint to govern them, prescribing, not the powers of the people themselves, but only the powers of those delegated to govern them.
4. The people of America are sovereign. All power flows from them, When they choose, they can amend, alter, destroy, and renew, the constitution. But until they do that, in their collective capacity, they are individually, and collectively, bound by that compact, and can be punished if they break it. This is a political phenomenon, unknown to every age, but the one in which we live. In England the people are not the sovereign power. They cannot assemble, and alter their form of government. The sovereign power there, is the parliament; and in fact parliament is govern. ad by the influence of the ministry, and the king.
5. A nation, or state, is a body politic, or a society of men, united together to promote their mutual safety and advantage, means of their union.
6. From the very design that induces them to form a society, that has its common interests, and ought to-act in concert, it is necessary that there should be established a public authority, to order and direct what ought to Le done, by each, in relation to the end or object of the association.
7. This political authority, in old governments, is called the sovereignty ; but in America, it is more proper to call it the “ Administration"and not the Sovereignty.
8. The constitution of the United States is the supreme law of the land. sul judicial officers of the United States are bound by oath to support it.
9. All legislative power, granted by the constitution, is vested in conbress.
10. The judicial power of the United States is vested in a supreme court, and in such inferior courts as congress shall establish.
11. The executive power is vested in a President, who is elected by the people, with the command of the army and navy, and of the militia. He has power, with consent of the senate, to make treaties ; to nominate, and with consent of the senate, to appoint, all officers of the United States, not Otherwise appointed by the constitution. He is removable from office, on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
12. All the foregoing powers of the different branches of the United States' government, are limited and restricted, by the Constitution. And even the powers of the States are limited by the same instrument. The Constitution may be amended by three fourths of the States, or a Convention assembled for that purpose.
13. Freedom of speech, and of the press, and free exercise of religion, together with a right of peaceably assembling, to petition the government, for a redress of grievances, are all secured by the Constitution.
14. The right of the people to bear arms shall not be infringed.
15. The people shall be secure in their perso?s, houses, papers, and effects, from unreasonable searches.
16. No person shall be held to answer for a capital, or otherwise in. famous crime, unless on a presentment, or indictment of a grand jury; except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war, or public danger.
17. No person shall be deprived of liberty, without due process of law nor shall private property be taken for public use, without just compensation.
18. The right of trial by jury, and of being confronted with the wit. nesses, is secured to every person accused of crime; and he is entitled to the assistance of counsel for his defence.
19. The powers not delegated, by the CONSTITUTION, are reserved to the PEOPLE.
Of the Rights of Persons. 1. The rights of men in society are divided into two classes, comprehend. ing the whole; to wit, The rights of persons, and the rights of things.
2. The rights of persons are either absolute, or relative. Absolute rights are those of personal liberty, personal security, and private property.
Personal security consists in the free enjoyment of life, limb, body, health, and reputation.
3. Relative rights are those which exist between governors and governed, or magistrates and people; or else those of a private nature, which exist between parent and child, husband and wise, master and servant, guardian. and ward.
4. Personal liberty consists in the unrestrained power of locomotion. The chief safeguard of this right is the writ of Habeas Corpus, which is the most celebrated writ in the English law. This is a writ of right, to which every person in prison, or in any other way restrained of his liberty, is, as a matter of course, entitled, and issues from court, or from a magistrate, to any person having another in his custody, commanding him to bring up the prisoner, together with the cause of his being detained. It was for want of some such writ, that the Bastile was crowded with prisoners, detamed without any cause. They had no means of bringing themselves before a magistrate, to be heard. In this country the writ lies to take away any unjust restraint in private life, between husband and wife, parent and child, master and servant, in which cases, courts and magistrates will set the persons free from any unreasonable confinement.
5. Parents are bound to maintain, protect, and educate their children ; and their duties may, in some instances, be enforced by law.
6. The power of parents over their children extends to correction, and this power ceases when the child arrives at twenty one years.
7. The child owes to the parent the duties of obedience, honour, respect, and service; all which duties may be enforced by law.
Of the Rights of Things. 1. The right of dominion, claimed by man over things, is derived imme. diately from Deity.
2. in the early ages of society, the substance of all things was in common; 3ut separate property is acquired by occupancy. Property occupied was leemed abandoned by death, till the right of inheritance was first introdured; and afterwards the right of devising by will enforced new modes of Transmitting property in things.
3. You may acquire a separate right to the use of air, light, and water; but only to the use. 4.
which are the objects of property, are divided into real and 2. A deed, is a writing, sealed, and delivered by the parties. To make a deed valid, the parties must be able to contract. The deed must be founded on sufficient consideration. The deed must be written, or printed, on parchment or paper ; and the matter in the deed must be suficiently set forth. *There must be no razures, unless a memorandum thereof be made before execution ; thc seal must not be broken, or defaced; and all the partics must concur in the delivery and taking thereof. It is usual to have two witnesses ; and the laws of some states, in the Union, require it. In this state, no such law exists; but it is most proper to have two witnesses to all deeds.
personal. Real are those of a fixed and permanent nature; and personal are those of a moveable nature. The first, are lands, tenements, and hereditaments.
5. In England, all lands are held of some superior, as the king. In America, lands are held independently of
any one. 6. The title, by which property in things real is held, is first, by a mere naked possession; as when one disseises another; secondly, by a right of possession; and thirdly, by a right of property. The three titles are necessary to a complete right.
7. We acquire title by descent, or by purchase. Descent is the means whereby the heir acquires title to the lands of which his ancestor died seized. This title is vested by the operation of law; whereas, title by purchase is created by the act of the parties.
3. In this country, lands descend to the children equally, share and share alike. In England, the male inherits before the female ;. and if there are two males, the eldest son inherits. All estate by descent makes the heir answerable for the acts of the ancestor ; an estate by purchase does not.
9. Forfeitures of estates are abolished by the statute law of this state. Bụt if there be no issue to take an estate it escheats to the state.
Of the Title to Things Real. 1. Title by Alienatiori is either by deed, by record, or by devise ; we have no title by special custom known in America.
3. Judgments, which are matters of record, bind lands in this state, for the term of ten years, after they are entered on record, Fines and recoveries are also modes of acquiring title by record.
4. Title by devise is an ancient mode of transferring real property. Devises of lands must be made in writing, signed by the party, or by his direction, attested and subscribed, in the presence of such party, by three or more credible witnesses, or else such will is void.
5. Personal property is either in possession, or action. While the individual is in actual occupancy, it is in possession. Where he hath only the right, without the occupancy, it is in action. 6. There is no title by prerogative in this country.
7. An infant, under the age of twenty one years, cannot make any contract; nor can a married woman. But a child is of the age of discretion, to choose a guardian, make a will of personal property, contract marriage, &c, if a male, at the age of fourteen years ; if a female, at the age of twelve. Persons non compos and ideots, can make no contracts whatever.
8. A will of lands made by a married woman void. She may will away her personal chattels by her husband's assent.
9. A will is a legal declaration of a man's intentions, which he wills to he performed after his death ; and it may be written, or nuncupative. The first being committed to writing, with all due solemnities; the other merely
verbal, and declared in extremis ; as by a sailor on a wreck, or a soldier dr ing on battle ground. A codicil is a supplement to a will; and may also be written, or nuncupative. Wills may be avoided, by the disabilities of the parties ; by the publication of a subsequent will, or by cancelling.
10. An executor is a person appointed by a will to execute it. An administrator is a person appointed by the Surrogate, or other proper magistrate, where there is no will, or when there is a will, and the executor does not act, or the testator has died without appointing an executor. The magistrate must prefer the nearest kindred to be administrator, unless good cause be shown against it.
11 Executors and administrators must bury the deceased, prove the will, take an inventory of the estate, collect the goods and chattels, pay the debts and legacies, and distribute the residuum of estate, according to the will, or the statute of distribution.
Of Private Wrongs, and the Means of Redress. 1. Private wrongs are those which affect individuals in their individual capacity, and are called civil injuries.
2. They are redressed by the mere act of the parties; as by self defence, by recaption of property taken, by entry on the land withheld, by abatement of nuisances, or by distress of money or goods, as for rent, &c.
3. Private wrongs are also redressed by the operation of law; as by r.stainer ; as when a creditor is made executor by his debtor, he may retain the debt.
4. Or by remitter ; as where an individual ousted of an estate, acquires a subsequent defective titie, the law here remits him back to his former titko.
5. But the usual course of redress for any civil injury, is by action in a court. And these actions are brought to redress, either relative rights, that is, such as relate to husband and wife, parent and child, guardian and ward), master and servant; or absolute rights, relating to personal security, pet" sonal liberty, or private property:
6. Injuri-s done to the personal security, relating to life, limb, and body, are either menace, assault, battery, or mayhem; and the civil remedy for all these injuries, is the action of trespass, vi et arinis.
7. Injuries relating to health, as mal praxis by physicians, &c. and those relating to reputation; as slander, libel, and malicious prosecution, are »:hmedied by the action of trespass on the case.
8. Remedies for false imprisonment are first, by removal; as by writ of habeas corpus. Writs de odio et atia, and de homine replegiando, are out of use, since the introduction of the writ of habeas corpus.
9. Injuries to private property, if it be personal property, and in the possession of the wrong doer, are remedied by the actions of replevin, trover, ard detinue.
10. As if goods are wrongfully distrained, the party injured replevies, or retakes them by a writ of replevin. If one find goods, and refuse to deliver them to the right owner, the remedy is by action of trover, for things found, or for the value of ihem; and if papers, or valuables, be detained, the remedy is by action of detinue, to recover the specific things detained. In these cases, the owner is deprived of his possession ; bat in case the injury is to the per: sonal property, while in the possession of the owner, the remedy is by action of trespass, ri et armis, if the injury be direct, as by entering a house ; or by action of trespass on the case, if the injury be indirect, as by carelessness ix driving a carriage, or sailing a sloop, whereby another's property, or persone is injured