Its merits.

*547

*The value of the civil law is not to be found in questions which relate to the connection between the government and the people, or in provisions for personal security in criminal cases. In every thing which concerns civil and political liberty, it cannot be compared with the free spirit of the English and American common law. But upon subjects relating to private rights and personal contracts, and the duties which flow from them, there is no system of law in which principles are investigated with more good sense, or declared and enforced with more accurate and impartial justice. I prefer the regulations of the common law upon the subject of the paternal and conjugal relations, but there are many subjects in which the civil law greatly excels.

and permanent impression, and have become intermixed and incorporated with Saxon laws and usages, and constituted the body of the ancient English common law. A learned and able article in the Law Review and Quarterly Journal of British and Foreign Jurisprudence for November, 1846, entitled "origin of the common law," concludes that the political government, the civil jurisprudence, and the judicial establishments, which prevailed in England in the Anglo-Saxon period, had their main source in the Roman law. This was the result of Mr. Spence's researches in his Equitable Jurisdiction of the Court of Chancery, and which the very learned and candid author to whom I have alluded adopts, after a full investigation.

a The principles of the English common law, and the freedom and spirit which pervaded its institutions, civil and political, guided and sustained the American Revolution. The congress of 1774 claimed and asserted, as their indubitable right, the rights of free and natural born subjects-such as the rights of life, liberty and property, and the common law of England, to which their ancestral emigrants, and they, their descendants, were entitled; the right of the people to participate in the legislative power, and to be tried by their peers of the vicinage; and the benefit of such English statutes as existed at the time of their colonization, and were applicable to their circumstances. (Journal of Congress of October 14, 1774.) The fundamental English statutes, and which are the basis of English freedom, and clothed with the sanctity of constitutional provisions, are Magna Charta, the abolition of military tenures, the petition of right, the habeas corpus act, the bill of rights and if I were reduced to the alternative of choosing for my protection of life, liberty and property, between the Roman civil law and those common law and statutory institutions to which I have alluded, I should infinitely prefer the latter, even to the entire compilation of the Institutes, the Pandects, and the Code of the Emperor Justinian. I agree entirely with the English judges at Westminster, in their answers to the celebrated articles, the articuli cleri, exhibited against them by Archbishop Bancroft, in the time of James I., in which they assert the superiority of trial of fact by a jury, and the viva voce evidence of witnesses to the paper proofs in the civil law courts, and in their duty to issue writs of habeas corpus in cases of undue imprisonment. See 2 Co. Inst. on the statute of 3 Ed. III., where a copy of the articles, and the answers to them, are given.

The rights and duties of tutors and guardians are regulated by wise and just principles. The rights of absolute and usufructuary property, and the various ways by which property may be acquired, enlarged, transferred and lost, and the incidents and accommodations which fairly belong to property, are admirably discussed in the Roman law, and the most refined and equitable distinctions are established and vindicated. Trusts are settled and pursued through all their numerous modifications and complicated details, in the most rational and equitable manner. So, the rights and duties flowing from personal contracts, express and implied, and under the infinite variety of shapes which they assume in the business and commerce of life, are defined and illustrated with a clearness and brevity without example. In all these respects, and in many others, which the limits of the present discussion will not permit me to examine, the civil law shows the proofs of the highest cultivation and refinement; and no one who peruses it can well avoid the conviction, that it has been the fruitful source of those comprehensive views and solid principles, which have been applied to elevate and adorn the jurisprudence of modern nations.

The Institutes ought to be read in course, and accurately studied, with the assistance of some of the best commentaries *with which they are accompanied. Some *548 of the titles in the Pandects have also been recommended by Heineccius to be read and re-read by the indefatigable student. The whole body of the civil law will excite never-failing curiosity, and receive the homage of scholars, as a singular monument of wisdom. It fills such a large space in the eye of human reason; it regulates so many interests of man as a social and civilized being; it embodies so much thought, reflection, experience and labour; it leads us so far into the recesses of antiquity, and it has stood so long "against the waves and weathers of time," that it is impossible, while engaged in the contemplation of the system, not to be struck with some portion of the awe and veneration which are felt in the midst of the solitude of a majestic ruin.

PART IV.

OF THE LAW CONCERNING THE RIGHTS OF

PERSONS.

LECTURE XXIV.*

OF THE ABSOLUTE RIGHTS OF PERSONS.

THE rights of persons in private life are either absolute, being such as belong to individuals in a single, unconnected state; or relative, being those which arise from the civil and domestic relations.

The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent and unalienable. The effectual security and enjoyment of them depend upon the existence of civil liberty; and that consists in being protected and governed by laws made, or assented to, by the representatives of the people, and conducive to the general welfare. Right itself in civil society, is that which any man is entitled to have, or to do, or to require from others, within the limits prescribed by law. The history of our colonial government bears constant marks of the vigilance of a free and intelligent people, who understood the best securities for political happiness, and the true foundation of the social ties. The inhabitants of the colonies of Plymouth, and Massachusetts, in the infancy of their establishments, declared

[* In the previous editions, Lecture XXIV. was the commencement of the 2d volume.]

*2 by law that the free enjoyment of the liberties *which

humanity, civility and Christianity called for, was due to every man in his place and proportion, and ever had been, and ever would be, the tranquillity and stability of the commonwealth. They insisted that they brought with them into this country the privileges of English freemen; and they defined and declared those privileges with a caution, sagacity and precision, that have not been surpassed by their descendants. Those rights were afterwards, in the year 1692, on the receipt of their new charter, re-asserted and declared. It was their fundamental doctrine, that no tax, aid or imposition whatever, could rightfully be assessed or levied upon them, without the act and consent of their own legislature; and that justice ought to be equally, impartially, freely and promptly administered. The right of trial by jury, and the necessity of due proof preceding conviction, were claimed as undeniable rights; and it was further expressly ordained, that no person should suffer without express law, either in life, limb, liberty, good name or estate; nor without being first brought to answer by due course and process of law.a

■ Hazard's State Papers, vol. i. p. 408. 487. edit. Philad. 1792. Hutchinson's Hist. of Massachusetts, vol. ii. p. 64. Revised Laws of Massachusetts, published in 1675. Baylie's Historical Memoir, vol. i. p. 229. Bancroft's Hist. vol. i. p. 452. It was a provision in the charters to the Virginian settlers, granted by James I., in 1606 and 1609; and in the charter to the colonists of Massachusetts in 1629; of the province of Maine in 1639; of Connecticut in 1662; of Rhode-Island in 1663; of Maryland in 1632; of Carolina in 1663; and of Georgia in 1732, that they and their posterity should enjoy the same rights and liberties which Englishmen were entitled to at home. Such privileges were implied by law without any express reservation. The like civil and religious privileges were conceded to New-Jersey by the proprietaries in February, 1665. Bancroft's Hist. vol. ii. 316. In the free and liberal charter of Massachusetts of 1629, powers were granted to the whole body of the proprietors to make laws not repugnant to the laws of England. The colonists of New-Plymouth assumed the necessary powers of government by an original compact among themselves, and which they subscribed before they landed on the rock of Plymouth; and which they had in contemplation before they embarked from Holland. Young's Chronicles of the Pilgrim Fathers, p. 95. All the New-England colonies, on their first establishment, were pure democracies: none more so ever existed. The governments of Rhode-Island, Connecticut and NewHaven, were thus formed by voluntary compact. Under the first Massachusetts charter, the legislative body was composed of the governor, assistants, and the whole freemen of the company in person. The first general court of delegates was