The national era. [volume] (Washington [D.C.]) 1847-1860, 1854-11-02
(coPYRIGHT SECURED BY THE AUTHoR.l
For the Nation al Era.
THE LEGAL TENURE OF SLAVERY.
LETTER XXI.
RELATION OF COMMON LAW TO STATU
AND CONSTITUTIONAL LAW.

10 TIE friends OF Anc71cdn LtbeTfy:
| In my last letter, showed that Slavery is in
| compatible with common law. and is expressly
| forbidden by 1T; also, that common law claims
| To be, and must be, in its essential nature, para
mount to statute law. And ! closed by obServ
| ing, that Z" no nation, under any form of govern
ment, can have any security for Its liberties
| without revering the paramount authority OF
natural or common law.
| Is it not so? Reflect, for one moment, and
| Judge for yourselves. The Liberties of nation
are nothing distinct from the liberties of Its citi-
zens; their liberties are nothing distinct from
| the security and free exerQi0 of their personal
/ riqhtS The rights of one Citizen are the rights
| Of another-tne rights of each, and of all. loa,
| who read this letter, one of those citizens.
| You claim and possess certain rights-rights OF
property. personal security, locomotion, selfcon-
| troll. On what do you rely for the security of
these rights, so fer YOU expect it from the
protection of Government? You say YOU rely
on the lars, and the proper administration of
the laws? But what do you mean by that i'm
portant word, Law? Aud what security have
YOU for the proper exposition and administra-
ton of law? If judges and juries do not right
ly understand 1T, they cannot properly expound
and apply it. Il the Executive department does
not understand and honor it. the law will not he
enforced. Nav, more if the community does
not, in the main, understand and revere it, as
they should do, the Government cannot be sus-
tanned in the administration Of law and your
rights cannot be secured by it. If the prevail
ing notion oi law IS ,rpong ii becomes the instru-
ment of taking away your rights instead of Sc
curing them.
DO YOU look exclusively to the statute-book
for the lar by which your rights are To be Sc
cured? DO YOU hold statutes paramount to
L., hot
enforce them. however much they may violate
common law or natural right? Alas for your
rights, if this be the only security you have for
them! An unjust, perverted. or a misapplied
Stdtdtc. Tin open contempt of common law or
natural right becomes, in this way. the most
ready and most effectuai Instrument, in a civil
lied community, of taking away a mans rights,
nsomuch that, in the judgment of experienced
| Observers in some communities the courts are
| more frequently and more successfully resorted
| 10. by those who WELD them instruments OF
| uni Just aggression, than by those who need a
! defence from injustice. And. i'll most commu-
mites the difficulties, the EXPENSES and the un-
| certainty of obtaining any defence from nius
| tee by legal process. are great as To deter
| those who have not ample fortunes, and are not
skilled in legal technicalities and tactics, from,
seeking, either as plaintiffs or as defendants
any redress defence from courts of Justice
| This notorious and long-standing abuse, the OPP
| probrium of our modern Jurisprudence, the
| scandal of our Christian civilization the stand
| ing burlesque upon our claims to proficiency in
| the Science of Government, arises mainly from
| the absurd notion that everything the page
| of the statute book however IN ust, confused
| or selfcontradictory, must needs be administer
| ed as kfu,
Consider, further, that the statutcbook OF nc
| State nation ever contained, or ever could
contain, a tenth part of the particular specifca
tious necessary for the security of the rights Of
a.sy onc of the huInblest or most isolated of liz
citizens! No human foresight could foresee al
| the ways in which a mans rights could be inva
died. so as TO enact the needful prohibitions OF
| safeguards. 1t is not in his way that even tbs
| Omniscicnt Lawgiver himself with his divine
| prescience. proceeds, MAINLY in egislating fol
| mankind His statuteboo does, indeed, con
| tain many specifications, but is mainly occupied
with the calculation of great principles of equity
| justice, and righteousness. to be universally ant
everywhere applied, "a particular cases arise
| And those principles are those Of universal jus
| tice and natural law. constituting the essence o
| what call common Tar.
| Consider, again. the complexities and dis
crepancics TO be found on our statute-books
rendering it oitentimes easy TO cite statute
cision, and precedent against precedent, till II,
way OF settling their conflicting claims is left
without resorting to the paramount authority o
| natural Justice a. common td,c.
Decisions of courts, authorities, and precc
dents. are quite confused, contradictory, AM
uncertain, as the statute-books except so far a
upright Judges and Jurors have opcrleaped stat
utc-books. decisions, authorities, and prece
dents, and planted themselves on the founda
) ton principles of natural right and con'mo
iG,c.
The accumulation of conflicting statutes, dc
cisions. and prccedents, is sometimes so pei
picking and blrdensome that codifcation
the statutes and judicial decisions, under AT
thOritv OF Government, becomes necessary, an
- Revised Code is the result of it. And ho
is the process performed? In no way but b
: bringing all statutes and decisions to the ties
= and under the paramount authority Of unire
: sal, natural, or common lar, deciding all d
| crepancies, anomalies, and contradictions, b
: that standard, rejecting the unjust in favor
the equitable, and thus bringing into somethin
I like order and scientific arrangement, what wa
before unintelligible jargon, conflict, and chao
We have the testimony of the worlds ablei
' and most learned jurists, las, for example, S
William Jones, of Bengal,) that in no other wa
: can the legislation or Jurisprudence of an
/ country be brought into anything like toerab
harmony, or be made to consist with the ends ,
good government, or reduced to any degree ,
certainty deserving the name of legal science
| No codifcaton Of laws, that We know of, hs
: been as thoroughly perfected as it might hav
been by a more unreserved subsection to nati
r raj law, and corresponding boldness in til
rejection of mere statutes and Judicial decision
But enough has been done To test the wisdom
| the procedure All Qualifications have been in
i. provements, in favor of liberty and the securii
of rights, just in proportion TO the fidelity wit
which the principles of common law have bee
i made paramount to Legislative acts and judici
:, decisions. Magma Charta and the trial by Jun
1 1.-THE jurors being then judges of the law as We
n as of the fdctS) was, for centuries, the gre,
e buiwark of freedom and safeguard Of right
' mainly because, during that period, they int
l posed a check against the pretended Omnp
P tence of Parliament and the paramount autho
g ity of statutes The original potency of III
4 trial by jury, as then exercised, was the a.
5 knowledged right of any twelve Englishmel
1 empanelled as jurors, 10 set aside and MULTI
= any act of King and Parliament deemed incop
t patible with justice-in other words, with "a,
) yeysoI common Tar.
t In no age or nation, perhaps, has the ral
{ for legislation been carried to such an insal
pitch AS in our own. And seldom has the de
n H. danoral,1in0 tho all-unbinoinp do