PAPER READ BY GEORGE A. MERCER. The Relationship of Law and National Spirit. The very intimate and philosophical connection subsisting between the laws and the spirit or temper of a community, though sufficiently obvious to reflection, often escapes or eludes casual observation. It requires some study and thought properly to appreciate and exhibit the vital importance to every political fabric of a healthy national temper, as the support, guardian, and interpreter of its legal institutions. The spirit of a community, in the largest sense, represents its prevailing opinion and feeling; it signifies the views of the people in relation to their various interests; the motives by which they are governed, and the prejudices by which they are controlled. It is compounded of various elements-interest, habit, pride, prejudice, all enter into its composition. It is moulded by the pursuits and circumstances of the people, by climate, situation, government, and laws. The spirit of a community is generally quite correctly deline ated by the legal institutions of the country; they yield in time to its creative or plastic influence, and express, with fidelity, the moral aspect of the people they constrain. Nothing, for example, could more forcibly indicate the corruption of the Athenian spirit than the law which made it a capital crime to propose the application to purposes of state of the money designed for the theatre. Unjust and oppressive laws, no nation, animated by sentiments of liberty, will bear; mild and beneficent institutions, no corrupt and servile people will retain. The spirit of liberty, which began to prevail in England after the immediate depression of the conquest had passed away, resented the imposition of the arbitrary feudal regulations, and by the constant friction of public opinion adjusted them to the free temper of the nation. The harsh and oppressive consequences of subjugation were gradually displaced, and just and proper laws substituted in their stead. But these very laws, during the arbitrary reign of the Tudors, when the national. spirit had been palsied by the sufferings of civil war, were abrogated or disregarded. Every barrier that had been erected for the protection of the people was leveled. The accommodating temper of the governed kept pace with the spirit of royal usurpation. The Parliament, in their terror, enacted that the proclamations of the king should have the force of laws, and "an amazing heap of wild and new-fangled treasons" were prepared to entrap the indiscretion of the citizen. But the free and manly temper, which has preserved British liberty through so many political convulsions, was not extinct. It again animated the soul of the nation. The feeble ripples which at first chafed, rather than commanded, the will of the ruler, again swelled with the power and majesty of the ocean. Public sentiment, enfranchised and strengthened, resisted the encroachments of power; and, during the reign of the Stuarts, arbitrary and oppressive laws were repealed or accommodated to the altered spirit of the nation. The same intimate connection between the legal institutions. and the public temper of a people may be traced in the history of the ancient states, and the vitiation of the latter can be readily recognized by the changes that were made in the former. Some monuments of Grecian and Roman freedom survived for a time the spirit that produced and upheld them, but finally they were perverted from their true design or crumbled into ruin when their support had been withdrawn. It is true that the form and letter of the law will sometimes be retained after the vitalizing spirit has disappeared. The Roman people continued to address as consul the ruler who wielded the power of a king, and the English invested with all the show of absolute authority the royal person whose predecessor they had hurled from the throne. The enslavement of a nation, which retains the legal monuments of freedom, is therefore not impossible, but it is rare and only temporary. Sooner or later the spirit of a people must exhibit itself in their laws. The ancient writers attributed great efficacy to public manners, using the term in a broad sense, to denote the mental and moral characteristics and habitudes of men collected together into societies. But the manners of a people are only its spirit in action. They are the more direct and immediate effect of that public temper which exhibits itself in the laws. Political writers have dwelt much upon the fatal effects of a corruption of manners, and luxury and vice have been assigned as the fruitful causes of national ruin. But corrupt manners are a result rather than a cause. National decadence is due not so much to the influence of luxury and vice as to the corrupt spirit which they indicate and out of which they grow. Vicious practices may sometimes be obstructed or corrected, but though the symptoms be suppressed, the fatal malady remains where the vital spirit is diseased. The connection between the laws and the spirit and manners of a people being therefore of the most intimate nature, so that the vigor and purity of the former cannot co-exist with the corruption of the latter, the following propositions necessarily result First. It is impossible to introduce and maintain good legal institutions among a people whose spirit is debased and unprepared to receive them. Take, for example, as the strongest illustration which presents itself, a purely despotic government. Montesquieu has shown that the spirit of a despotic government is fear. In this state, therefore, the fountain of public virtue and happiness is poisoned in its source. A free spirit is the ruin of such a government; a servile temper is its strength. It can endure only by the systematic corruption of all political virtue. Established upon the permanent debasement of the people, those generous and aspiring qualities, which are to free nations the source of unbounded strength, only threaten this with destruction. The disposition to protect one's rights is a constant assault upon the state; the very notion of right must be extirpated from the mind. The laws that are suffered to exist are known only by their oppression, and are confounded with the arbitrary will of the ruler, while the will of the ruler again adds terror to the law. The established supremacy and fixed operation of law, which are the best guaranty of security and happiness to the citizens of a free country, afford no consolation to the inhabitants of a despotic state. There nothing is fixed but compliance, nothing is immutable but oppression. The very idea of law, which Burke defines to be beneficence acting by rule, is associated with a blind and fatal power that impoverishes the body and extinguishes the mind. No longer the harmony of the state, it is become a jangling and horrid discord; as if the grand operations of nature which in more favored climes move. on in concord, charming with melodious sounds and tranquil motions, here performed their functions with desolating energies and awful clamor. As the principles of a despotic state are founded in the inertia. of the people, all of its force is directed to the stupefaction of the soul. Those great and noble emotions, which stretch beyond the petty interests of self, are carefully repressed. The free and frank expression of opinion, the aspiration after virtue, the paternal temper, and the benevolent heart, are incompatible with the spirit of a despotic state. Sympathy itself, the crutch of misery, is a bond of union, and therefore inimical to its theory. No principle of association can be tolerated. Languid isolation is the settled condition of existence, and the unfortunate subject |