An Essay on Professional Ethics | Page 6

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 decide that case conformably to the law, disregarding
the Constitution, or conformably to the Constitution, disregarding the
law: the court must determine which of