Unformatted text preview: THE WORKS
THE HONOURABLE JAMES WILSON, L. L. D.
LATE ONE OF THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE UNITED
STATES, AND PROFESSOR OF LAW IN THE COLLEGE OF PHILADELPHIA.
PUBLISHED UNDER THE DIRECTION
BIRD WILSON, ESQUIRE.
LEX FUNDAMENTUM EST LIBERTATIS, QUA FRUIMUR. LEGUM OMNES SERVI SUMUS,
UT LIBERI ESSE POSSIMUS. ― CIC. VOL. II.
AT THE LORENZO PRESS, PRINTED FOR BRONSON AND CHAUNCEY.
1804. DISTRICT OF PENNSYLVANIA: ― TO WIT.
BE IT REMEMBERED, That on the fifth day of July, in the twenty ninth year of the independence of
the United States of America, BIRD WILSON, Esquire, of the said district, hath deposited in this office
the title of a book, the right whereof he claims as proprietor, in the words following, to wit:
"The Works of the Honourable James Wilson, L. L. D. late one of the Associate Justices of the Supreme
Court of the United states, and Professor of Law in the College of Philadelphia. Published under the
direction of Bird Wilson, Esquire. Lex fundamentum est libertatis, qua fruimur. Legum omnes servi
sumus, ut liberi esse possimus." ― Cic.
In conformity to the act of the Congress of the United States entitled "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 the act entitled "An act supplementary to an act entitled
"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."
D. CALDWELL, Clerk of the
District of Pennsylvania. CONTENTS
SECOND VOLUME. LECTURES ON LAW.
Of the common law, 3
Of the nature and philosophy of evidence, 65 PART II.
Of the constitutions of the United States and of Pennsylvania ― Of the legislative department, 117
Of the executive department, 183
Of the judicial department, 201
Of the nature of courts, 287
Of the constituent parts of courts. ― Of the judges, 299
The subject continued. ― Of juries, 305
The subject continued. ― Of sheriffs and coroners, 389
The subject continued. ― Of counsellors and attornies, 399
The subject continued. ― Of constables, 421 CHAPTER X.
Of corporations, 425
Of citizens and aliens, 431
Of the natural rights of individuals, 453 LECTURES ON LAW,
DELIVERED IN THE
COLLEGE OF PHILADELPHIA,
IN THE YEARS ONE THOUSAND SEVEN HUNDRED AND NINETY,
AND ONE THOUSAND SEVEN HUNDRED AND NINETY ONE.
VOL. II. PART I.
OF THE COMMON LAW.
"SAPIENTISSIMA res tempus," says the profound Lord Bacon,310 in one of his aphorisms concerning
the augmentation of the sciences ― Time is the wisest of things. If the qualities of the parent may, in
any instance, be expected in the offspring; the common law, one of the noblest births of time, may be
pronounced the wisest of laws.
This law has, at different times, and for different reasons, been denominated by different appellations.
It is sometimes called, by way of eminence, the law of the land, "lex terræ." At other times, it is called
the law of England. At other times again, it is called the law and custom of the kingdom. But its most
general and best known appellation is, the common law. Various are the reasons, which have been
assigned for this appellation: the best seems to be this ― that it is the common municipal law or rule of
justice;311 the law which is described in the code of king Edward the elder, as expressing the same equal
right, law, or justice, due to persons of all degrees.312
The term common law is not confined to the law of England: It is not, says Sir Henry Finch, a word
new and strange, or barbarous, and proper to ourselves, and the law, which we profess, as some
unlearnedly would have it: it is the proper term for other laws also. Euripides mentions the common
laws of Greece; and Plato defines common law in this manner: that which, being taken up by the
common consent of a country, is called law. In another place, he names it, the golden and sacred rule of
reason, which we call common law. This place, continues the same author, in his discourse of law,313 is very notable: it opens the original
and first beginning of the common law: it shows the, antiquity of the name; it teaches common law to
be nothing else but common reason ― that refined reason, which is generally received by the consent
The antiquity of the common law of England is unquestionably very high. It is worth while to listen to
what may be deemed the prejudices ― certainly the pardonable ones ― of its fond admirers, upon a
point so interesting to their partiality.
The realm of England, says Lord Chancellor Fortescue,314 was first inhabited by the Britons; it was
afterwards ruled and civilized under the government of the Romans: then the Britons prevailed again:
next it was possessed by the Saxons: afterwards the Danes lorded it over us: the Saxons were
successful a second time at last, the Norman conquest took place. But, during all that time, England has
been constantly governed by the same customs, by which it is governed at present. Neither the laws of
the Romans, which are celebrated beyond all others for their antiquity; nor yet the laws of the
Venetians; nor, in short, the laws of any other kingdom in the world are so venerable for their antiquity.
So that there is no pretence to insinuate to the contrary, but that the laws and customs of England are
not only good, but the very best. ― Thus far from the predilection of the chancellor.
But, in truth, it is extremely difficult, if not altogether impracticable, to trace the common law of
England to the era of its commencement, or to the several springs, from which it has originally flowed.
For this difficulty or impossibility, several reasons may be assigned. One may be drawn from the very
nature of a system of common law. As it is accommodated to the situation and circumstances of the
people, by whom it is appointed; and as that situation and those circumstances insensibly change; so,
especially in a long series of time, a proportioned variation of the laws insensibly takes place; and it is
often impossible to ascertain the precise period, when the change began, or to mark the different steps
of its progress. Another reason may be drawn from the great number of different nations, which, at
different successive periods, and sometimes even at the same period, possessed the government, or the
divided governments of England. These added, undoubtedly, to the richness and variety of the common
law; but they added likewise to the difficulty of investigating the origin of its different parts.
If this investigation is difficult, there is one consolation, that it is not of essential importance. For at
whatever time the laws of England were introduced, from whatever person or country they were
derived; their obligatory force arises not from any consideration of that kind, but from their free and
voluntary reception in the kingdom.
Several writers, some of them very ingenious and learned, think they can discover, in the common law,
features, which strongly indicate, that it is of a Grecian extraction. Without adopting implicitly the
authenticity of this high descent, it may be well worth our while to examine the particulars, on which
the opinion is founded. If they lead us not to this conclusion, they may, perhaps, lead us to something
else, which will be, at least, equally valuable and instructive.
The similarity between the idiom of our language and that of the Grecians has persuaded some very
sensible men to believe, that the inhabitants of Great Britain were, in a very remote age, connected, in
some manner, with the inhabitants of Greece. This similarity is, indeed, very striking. No one, I believe,
who is acquainted with the Greek, the Latin, and the English languages, will hesitate to declare, that
there is a closer affinity of idiom between the Greek and the English, than between the English and the
Latin, or between the Latin and the Greek. The very idea of a traditionary law, transmitted from generation to generation merely by custom and
memory, may be considered as derived, in part at least, from the practice of the Druids, who considered
it as unlawful to commit their religious instructions to writing. But we are informed by the penetrating
and intelligent Cæsar, that, in other business, whether of a publick or of a private nature, they used the
Grecian letters ― "Græcis literis utuntur."315
Pliny conjectures that the name of Druid was derived from the Greek word druj, quercus, an oak,
because they performed their solemn ceremonies in the deep recesses of groves formed by oaks; and
because, in their sacrifices, they used the leaves of those trees.316 The missletoe, it is well known, was
of sacred import in their religious mysteries.
Nathaniel Bacon, a gentleman of Gray's inn, wrote a historical and political discourse of the laws and
government of England, particularly during the early periods of its history. This discourse, we are
informed, was collected from manuscript notes of Mr. Selden, so famed for his various and extensive
erudition. To the notes of an antiquarian, so celebrated and so profound, attention will be expected in an
investigation of the present kind.
In that discourse we are told, that, though it be both needless and fruitless to enter the lists concerning
the original of the Saxons; yet, about the time of Tiberius, their government was, in general, so suitable
to that of the Grecians, as if not by the remains of Alexander's army, which was supposed to emigrate
into the north, nevertheless, by the neighbourhood of Greece, much of the Grecian wisdom was
disseminated among them, before the Roman glory was mounted up to the full pitch; and because this
wisdom could never be thus imported but in vessels of men's flesh, rigged according to the Grecian
guise, it may well be supposed that there is some consanguinity between the Saxons and the Grecians,
although the degrees be not known.317
Their country, continues he, they divided into counties or circuits, all under the government of twelve
lords, like the Athenian territory under the archontes. These had the judicial power of distributive
justice committed to them, together with one hundred of the commons out of each division. The
election of these princes with their commission was concluded inter majora, by the general assembly,
and they executed their commission in circuits, like unto the Athenian heliastick or subdial court, which
was rural, and for the most part kept in the open air. In brief, their judicial proceedings were very
suitable to the Athenian, but their military more like the Lacedæmonian, whom, above all others, in
their manners, they most resembled.318
Austin is generally considered as the apostle of the Saxons, who converted them to christianity: but our
author suggests, that he was an apostle of another kind ― to reconcile them to the see of Rome. To
prove this, he adduces a remarkable fact, that the Saxons kept Easter "more Asiatico;" and, against
Austin's will, retained that custom fifty years after Austin began his mission among them.319
In enumerating the different manners of trial among the Saxons, he says, that the last and most usual
one was by witnesses, before the jurors, and their votes thereupon: this made the verdict, and it
determined the matter in fact. In former time, questionless, it was a confused manner of trial, by votes
of the whole multitude; which made the votes hard to be discerned. But time taught them better advice,
to bring the voters to a certain number, according to the Grecian way, who determined controversies by
the suffrages of four and thirty, or the major part of them."320
Speaking of a certain regulation concerning dower, which was derived from the Latins, he says; "but
the Germans learned from the Greeks otherwise: for the laws both of Solon and Lycurgus forbade it, lest marriages should be made for reward, and not grounded on affection."321
After having described, in detail, a number of particulars relative to the Saxon government and laws, he
makes this general remark: "Nor did the fundamentals alter, either by the diversity and mixture of
people of several nations in the first entrance, nor from the Danes or Normans in their survenue; not
only because in their original they all breathed one air of the laws and government of Greece; but also
they were no other than the common dictates of nature, refined by wise men, which challenge a kind of
awe, in the sense of the most barbarous."322
He concludes his observations concerning the Saxon commonwealth in this expressive manner. "It was
a beautiful composure; mutually dependent in every part from the crown to the clown; the magistrates
being all choice men; and the king the choicest of the chosen election being the birth of esteem, and
that of merit this bred love and mutual trust; which made them as corner stones, pointed forward to
break the wave of danger.
"Lastly, it was a regular frame in every part, squared and made even by laws, which, in the people,
ruled as lex loquens, and, in the magistrate, as lex intelligens; all of them being grounded on the
wisdom of the Greeks, and the judicials of Moses."323
The history, says an inquisitive writer, of the constitutions of the different European nations may be
much elucidated by institutions, ascertained to have existed in their sister countries, during the
corresponding periods of their progress. The rise of the constitutions of the Greek and Italian states will
derive light from what is known of the Gaulick, German, and Scandinavian tribes.324
Dr. Pettingal, in his very learned inquiry concerning the use and practice of juries, differs from Mr.
Bacon with regard to the channel, through which the Grecian customs flowed into the Saxon
commonwealths: but he admits that those customs were originally derived from Greece. "The
likeness," says he, "of the Greek and Saxon government, supposed to be owing to the neighbourhood of
Greece and Saxony, proceeded from a different cause. For, as the Romans took their laws and
institutions from Greece, and particularly in the instance of the heliastick court, which was a court of
trial by jury, and on which the Romans formed their judicium or jury; so when they sent their colonies
into Germany, they sent also their laws and usages along with them, and by these means the wisdom of
Greece and the practice of the heliastick court got among the Saxons in the shape of the Roman judicia;
and the plan of the Greek government, through the channel of the Roman jurisprudence, laid the
foundation of many customs that had a resemblance to the Greek, but in fact were no other than an
imitation of the Roman polity, which originally was derived from Athens: so that the jury among the
Saxons and northern nations was derived from the Roman judicia, as the causa proxima; but both of
them drew their origin from the court of dikajai, or jury, among the Greeks. This was the manner, in
which the resemblance between the Saxons and Greeks, spoken of by Bacon, was produced."325
With regard to the institution of juries, he afterwards observes; "where shall we go, with so much
propriety, to look for its origin, as among those, who, of all mankind, were the depositaries and patrons
of equal law and liberty, and which they themselves had learned from the wisdom and good
government established in Athens by Solon? For nothing can be so absurd as to imagine, that such a
noble political structure, as had distinguished the only two civilized nations of Europe, and whose legal
limitations of power and obedience had done honour even to human nature, should, in times future, be
the fortuitous result of a tumultuous deliberation, and that of Scythians and barbarians, rather than an
imitation of the wisdom of those customs, which had been introduced among them by their
conquerors."326 The particular history of juries will find its proper place elsewhere. Suffice it to mention them now
among the group of institutions said to be derived from the Grecians to the Saxons either immediately,
or through the intermediate channel of the Romans.
The laws and institutions of Greece flowed into Italy, and were conveyed to the many different states
there, through a vast variety of channels.
The first inhabitants of this "terra potens virorum" were composed of Grecian tribes, the overflowings
of their native habitations, who migrated, in early days, into the southern parts of the Italian continent;
from this circumstance, it was denominated Magna Groecia. These colonists brought with them their
own laws and Customs.327 These laws and customs were incorporated into one general body, and made
a part of the unwritten or customary law of Rome. "The law of the ancient Romans," says Dr. Burn, in
the preface to his book on ecclesiastical law,328 "had its foundation in the Grecian republicks."
It is well known, that the Roman system of jurisprudence was much indebted to the wise and peaceful
institutions of Numa. There was one, which produced strong, and extensive, and lasting consequences
in the Roman republick; and which seems to have furnished an example for later times ― the
establishment of pagi or villages. The conquered and vacant lands he distributed among the citizens.
These he divided into districts, and placed over each a superintendant, in order to induce them to
improve in the arts of agriculture. The consequence of this wise regulation was, that the functions of
war and peace were frequently discharged by one and the same person. The farmer, the soldier, and the
magistrate were often united in the same character; and reflected on each other reciprocal ornament.
The respected citizen stepped from the plough to the consulship without being elated; and, without
being mortified, returned from the consulship to the plough. Thus the Cincinnati were formed.
Towards the latter end of the third century of Rome, a solemn deputation, consisting of three
commissioners, was despatched to Athens, with instructions to obtain a transcript of the celebrated laws
of Solon, and to make themselves fully acquainted with the regulations, the manners, and the
institutions of the other states of Greece.329
The constitution of Athens had lately received great improvements under the administration of some of
her most illustrious citizens, Aristides, Themistocles, and Cimon; and, at this very time, the splendid
Pericles was at the head of her government.
After an absence of about two years, the commissioners returned, with copies of the Athenian laws.
The decemvirs, of whom the commissioners were three, were then appointed, with full powers to form
and propose a digest of laws for Rome. With much alacrity and zeal they entered upon the execution of
the very important trust, with which they were invested by their confiding country. In the arduous
business, they received the most valuable assistance from a wise Ephesian, who had been driven, by the
hand of envy, from his native country; and who, during his exile, had opportunities of personally
observing the principles and characters of men, and the establishments and forms of society. His
accumulated treasures of observation and reflection were imparted liberally to the decemvirs. The name
of Hermodorus was gratefully transmitted to posterity, by a statue erected to his honour in the forum.
The code, which the decemvirs composed, consisted partly of entire laws transcribed from the Grecian
originals; partly of such as were altered and accommodated to the constitution and manners Of the
Romans; and partly of the former laws received and approved in Rome. It was engraved on ten tabl...
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