lawyer, considering the compass of his varied duties, and the probable call which will be made on him especially to enter the halls of legislation, must be a Jurist. From the ranks of the Bar, more frequently than from any other profession, are men called to fill the highest public stations in the service of the country, at home and abroad. The American lawyer must thus extend his researches into all parts of the science, which has for its object human government and law: he must study it in its grand outlines as well as in the filling up of details. He is as frequently called upon to inquire what the law ought to be as what it is. While a broad and marked line separates, and always ought to separate the departments of Legislation and Jurisprudence, it is a benefit to both that the same class of men should be engaged in both. Practice will thus be liberalized by theory, and theory restrained and corrected by practice. The mere abstractionist or doctrinaire would aim at the formation of a code of great simplicity: the practitioner sees in it the parent of uncertainty and injustice. Legal propositions cannot be framed with the certainty of mathematical theories. The most carefully studied language still leaves room for interpretation and construction. Time itself, which works such mighty changes in all things, produces a state of circumstances not in the mind of the lawgiver. The existing system, it may be, is an unwieldy, inconvenient structure, heavy and grotesque from the mixed character of its architecture outwardly, inwardly its space too much occupied and its inmates embarrassed by passages and circuities. The abstractionist would at once demolish it, and replace it by a light, commodious and airy dwelling, more symmetrical and chaste in its appearance, better fitted for the comfort and usefulness of its inhabitants. The practitioner, who has become familiar with it, who observes and admires that silent legislation of the people, which shows itself not on the pages of the statute book, and receives its recognition in courts of justice only after it has ceased to need even that to give it form and vitality, and who understands, therefore, how, with little inconvenience, it is made to accommodate itself to every change of condition, sits down to a careful calculation of the cost and risk of such wholesale change. History and practical experience, alike, suggest to him, that the structure is a castle as well as a dwelling, a place for security as well as comfort; that its foundations have been laid deeply on the solid rock—its masonry more firmly knit together by the time it has endured. Yet he will not[Pg xxviii] deny that what can be done consistently with security ought to be done. It is worse than in vain to oppose all amendment. It will break down every artificial barrier that may be reared against it, if it be not quietly and wisely directed in those channels which it seeks at the least expense to security and stability. Surely it is not conceding too much to this spirit to admit, that laws should be composed in accurate but perspicuous language, without redundancy of words or involution of sentences; that the policy of public measures should not be wrapt up in the folds of State mystery; and that all legislation should be based upon the principle of leaving the greatest liberty of private judgment and action, consistent with public peace and private security. A blind attachment to principles of jurisprudence or rules of law because they are ancient, when the advancement of the useful arts, the new combinations of trade and business, and the influence of more rapid and general intercourse demand their repeal or modification, is as much to be deprecated as rash innovation and unceasing experiment. Indeed it scarcely ever fails to defeat its own end, and though it may retard for a while, renders the course of reform more destructive than it otherwise would have been. True conservatism is gradualism—the movement onward by slow, cautious, and firm steps—but still movement, and that onward. The world, neither physically, intellectually, nor morally, was made to stand still. As in her daily revolutions on her own axis as well as her annual orbit round the sun, she never returns precisely to the same point in space which she has ever before occupied, it would seem to be the lesson which the Great Author of all Being would most deeply impress upon mind as he has written it upon matter; "by ceaseless motion all that is subsists."

What has thus been very cursorily presented will evince that it is the province of legislation, by slow and cautious steps, to amend the laws, to render them more equal in their operation upon all classes, not favoring the rich more than the poor, nor one class of either more than another, providing an easy, cheap, and expeditious administration of justice by tribunals, whose learning and impartiality shall be so secured as to possess the confidence of the community, and by general rules for the regulation of conduct and the distribution of estates most conformed to the analogies of that system, which is familiar to the people in their common law.

Great as is the influence which the profession of the law can and does exercise upon the legislation of a country, the actual administration of law is entirely in their hands. To a large extent by private counsel, by the publication of works of research and learning, by arguments in courts of justice to assist those who are to determine what is the law, and to apply it to the facts, as well as in the actual exercise of judicature, this whole important province of government, which comes home so nearly to every man's fireside, is intrusted necessarily to lawyers.

In this country we live under the protection of written constitutions; not only so, but written constitutions, which have assumed to place limits upon the power of majorities, acting at least through their ordinary representatives. The construction of these constitutions, or constitutional law as it is termed, forms a very important branch of American jurisprudence. There have been, and are, in other countries, charters, written or unwritten—organic or fundamental laws—but without this distinguishing feature. The fundamental laws, thus established in point of fact, emanate from the government, and have no sanction beyond the oath of those intrusted with the administration of them, the force of public opinion, and the responsibility of the representative to his constituent. Our constitutions emanate not from the government, but the State, the society, the creator of the government; and are, therefore, in the strictest sense of the words, leges legum. The radical principle of our system is, that the act of the legislative body, beyond or contrary to the power confided to it by the Constitution, is a nullity, and absolutely void. The courts must so pronounce, and the executive must execute their judgments with the whole force of the State. Upon such a subject it is best to use the very language—the ipsissima verba—of John Marshall, as, at the same time, expressing the doctrine with the greatest force and perspicuity, and presenting, in the mere statement, the most convincing argument of its importance. "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either