An Essay on Professional Ethics | Page 6

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 decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern