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by the superior power of a state. There is also the law of nature, the revealed law, and the law of nations.
2. The municipal law of America is composed of two parts, the lex scripta, and the lex non scripta; in other words, the common law, and the statute law.
3. The United States exhibit the first instance, in the annals of the world, of an original written compact, formed by the free voices of individuals, uniting in one bond of society. The confederated constitution is the written law of the land, as far as it goes, and is nothing more than a compact, made by the people with the governors, whom they appoint to govern them, prescribing, not the powers of the people themselves, but only the powers of those delegated to govern them.
4. The people of America are sovereign. All power flows from them, When they choose, they can amend, alter, destroy, and renew, the constitution. But until they do that, in their collective capacity, they are individually, and collectively, bound by that compact, and can be punished if they break it. This is a political phenomenon, unknown to every age, but the one in which we live. In England the people are not the sovereign power. They cannot assemble, and alter their form of government. The sovereign power there, is the parliament; and in fact parliament is governed by the influence of the ministry, and the king.
5. A nation, or state, is a body politic, or a society of men, united together to promote their mutual safety and advantage, by means of their union.
6. From the very design that induces them to form a society, that has its common interests, and ought to act in concert, it is necessary that there should be established a public authority, to order and direct what ought to be done, by each, in relation to the end or object of the association.
7. This political authority, in old governments, is called the sovereignty; but in America, it is more proper to call it the " Administration"and not the sovereignty.
8. The constitution of the United States is the supreme law of the land. All judicial officers of the United States are bound by oath to support it. 9. All legislative power, granted by the constitution, is vested in congress.
10. The judicial power of the United States is vested in a supreme court, and in such inferior courts as congress shall establish.
11. The executive power is vested in a President, who is elected by the people, with the command of the army and navy, and of the militia. He has power, with consent of the senate, to make treaties; to nominate, and with consent of the senate, to appoint, all officers of the United States, not otherwise appointed by the constitution. He is removable from office, on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
12. All the foregoing powers of the different branches of the United States' government, are limited and restricted, by the Constitution. And even the powers of the States are limited by the same instrument. The Constitution may be amended by three fourths of the States, or a Convention assembled for that purpose.
13. Freedom of speech, and of the press, and free exercise of religion, together with a right of peaceably assembling, to petition the government, for a redress of grievances, are all secured by the Constitution.
14. The right of the people to bear arms shall not be infringed.
15. The people shall be secure in their persons, houses, papers, and effects, from unreasonable searches.
16. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment, or indictment of a grand jury; except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war, or public danger.
17. No person shall be deprived of liberty, without due process of law; nor shall private property be taken for public use, without just compensation.
18. The right of trial by jury, and of being confronted with the witnesses, is secured to every person accused of crime; and he is entitled to the assistance of counsel for his defence.
19. The powers not delegated, by the CONSTITUTION, are reserved to the PEOPLE.
Of the Rights of Persons.
1. The rights of men in society are divided into two classes, comprehending the whole; to wit, The rights of persons, and the rights of things. 2. The rights of persons are either absolute, or relative. Absolute rights are those of personal liberty, personal security, and private property.
Personal security consists in the free enjoyment of life, limb, body, health, and reputation.
3. Relative rights are those which exist between governors and governed, or magistrates and people; or else those of a private nature, which exist between parent and child, husband and wife, master and servant, guardian and ward.
4. Personal liberty consists in the unrestrained power of locomotion. The chief safeguard of this right is the writ of Habeas Corpus, which is the most celebrated writ in the English law. This is a writ of right, to which every person in prison, or in any other way restrained of his liberty, is, as a matter of course, entitled, and issues from court, or from a magistrate, to any person having another in his custody, commanding him to bring up the prisoner, together with the cause of his being detained. It was for want of some such writ, that the Bastile was crowded with prisoners, detained without any cause. They had no means of bringing themselves before a magistrate, to be heard. In this country the writ lies to take away any unjust restraint in private life, between husband and wife, parent and child, master and servant, in which cases, courts and magistrates will set the persons free from any unreasonable confinement.
5. Parents are bound to maintain, protect, and educate their children ; and their duties may, in some instances, be enforced by law.
6. The power of parents over their children extends to correction; and this power ceases when the child arrives at twenty one years.
7. The child owes to the parent the duties of obedience, honour, respect, and service; all which duties may be enforced by law.
Of the Rights of Things.
1. The right of dominion, claimed by man over things, is derived immediately from Deity.
2. In the early ages of society, the substance of all things was in common; but separate property is acquired by occupancy. Property occupied was deemed abandoned by death, till the right of inheritance was first introduced; and afterwards the right of devising by will enforced new modes of transmitting property in things.
3. You may acquire a separate right to the use of air, light, and water; but only to the use.
4. Things, which are the objects of property, are divided into real and
personal. Real are those of a fixed and permanent nature; and personal are those of a moveable nature. The first, are lands, tenements, and hereditaments.
5. In England, all lands are held of some superior, as the king. In America, lands are held independently of any one.
6. The title, by which property in things real is held, is first, by a mere naked possession; as when one disseises another; secondly, by a right of possession; and thirdly, by a right of property. The three titles are necessary to a complete right.
7. We acquire title by descent, or by purchase. Descent is the means whereby the heir acquires title to the lands of which his ancestor died seized. This title is vested by the operation of law; whereas, title by purchase is created by the act of the parties.
3. In this country, lands descend to the children equally, share and share alike. In England, the male inherits before the female; and if there are two males, the eldest son inherits. All estate by descent makes the heir answerable for the acts of the ancestor; an estate by purchase does not.
9. Forfeitures of estates are abolished by the statute law of this state. But if there be no issue to take an estate it escheats to the state.
Of the Title to Things Real,
1. Title by Alienation is either by deed, by record, or by devise; we have no title by special custom known in America.
2. A deed, is a writing, sealed, and delivered by the parties. To make a deed valid, the parties must be able to contract. The deed must be founded on sufficient consideration. The deed must be written, or printed, on parchment or paper; and the matter in the deed must be sufficiently set forth. There must be no razures, unless a memorandum thereof be made before execution; the seal must not be broken, or defaced; and all the parties must concur in the delivery and taking thereof. It is usual to have two witnesses; and the laws of some states, in the Union, require it. In this state, no such law exists; but it is most proper to have two witnesses to all deeds.
3. Judgments, which are matters of record, bind lands in this state, for the term of ten years, after they are entered on record. Fines and recove ries are also modes of acquiring title by record.
4. Title by devise is an ancient mode of transferring real property. Devises of lands must be made in writing, signed by the party, or by his di rection, attested and subscribed, in the presence of such party, by three or more credible witnesses, or else such will is void.
5. Personal property is either in possession, or action. While the indis vidual is in actual occupancy, it is in possession. Where he hath only the right, without the occupancy, it is in action.
6. There is no title by prerogative in this country.
7. An infant, under the age of twenty one years, cannot make any contract; nor can a married woman. But a child is of the age of discretion, to choose a guardian, make a will of personal property, contract marriage, &c. if a male, at the age of fourteen years; if a female, at the age of twelve. Persons non compos and ideots, can make no contracts whatever. 8. A will of lands made by a married woman is void. She may will away her personal chattels by her husband's assent.
9. A will is a legal declaration of a man's intentions, which he wills to be performed after his death; and it may be written, or nuncupative. The first being committed to writing, with all due solemnities; the other merely
verbal, and declared in extremis; as by a sailor on a wreck, or a soldier dying on battle ground. A codicil is a supplement to a will; and may also be written, or nuncupative. Wills may be avoided, by the disabilities of the parties; by the publication of a subsequent will, or by cancelling. 10. An executor is a person appointed by a will to execute it. An admimistrator is a person appointed by the Surrogate, or other proper magistrate, where there is no will, or when there is a will, and the executor does not act, or the testator has died without appointing an executor, The magis trate must prefer the nearest kindred to be administrator, unless good cause be shown against it.
11 Executors and administrators must bury the deceased, prove the will, take an inventory of the estate, collect the goods and chattels, pay the debts and legacies, and distribute the residuum of estate, according to the will, d the statute of distribution.
Of Private Wrongs, and the Means of Redress.
1. Private wrongs are those which affect individuals in their individual capacity, and are called civil injuries.
2. They are redressed by the mere act of the parties; as by self defence, by recaption of property taken, by entry on the land withheld, by abatement of nuisances, or by distress of money or goods, as for rent, &c.
3. Private wrongs are also redressed by the operation of law; as by retainer; as when a creditor is made executor by his debtor, he may retain the debt.
4. Or by remitter; as where an individual ousted of an estate, acquires a subsequent defective title, the law here remits him back to his former title. 5. But the usual course of redress for any civil injury, is by action in a court. And these actions are brought to redress, either relative rights, that is, such as relate to husband and wife, parent and child, guardian and ward, master and servant; or absolute rights, relating to personal security, personal liberty, or private property.
6. Injuries done to the personal security, relating to life, limb, and body, are either menace, assault, battery, or mayhem; and the civil remedy for all these injuries, is the action of trespass, vi et armis.
7. Injuries relating to health, as mal praxis by physicians, &c. and those relating to reputation; as slander, libel, and halicious prosecution, are remedied by the action of trespass on the case.
8. Remedies for false imprisonment are first, by removal; as by writ of habeas corpus. Writs de odio et atia, and de homine replegiando, are out of use, since the introduction of the writ of habeas corpus.
9. Injuries to private property, if it be personal property, and in the possession of the wrong doer, are remedied by the actions of replevin, trover, and detinue.
10. As if goods are wrongfully distrained, the party injured replevies, or retakes them by a writ of replevin. If one find goods, and refuse to deliver them to the right owner, the remedy is by action of trover, for things found, or for the value of them; and if papers, or valuables, be detained, the remedy is by action of detinue, to recover the specific things detained. In these cases, the owner is deprived of his possession; but in case the injury is to the personal property, while in the possession of the owner, the remedy is by action of trespass, vi et armis, if the injury be direct, as by entering a house; or by action of trespass on the case, if the injury be indirect, as by carelessness in driving a carriage, or sailing a sloop, whereby another's property, or person is injured,
11. If the injury be to property in action; as by breach of contract, express or implied, the remedy is by action of debt, covenant, or assumpsit.
12. If the injury be against real property, as ouster of lands; the general remedy is by action of ejectment, or by writ of right, to try the title. There are other classes of injuries together with other remedies, which need not be here enumerated.
- 13. All these remedies are pursued, either in courts of common law, by writs, pleadings, trial by jury, judgment and execution; or in courts of equity by bills, answers, and decrees.
14. Courts of equity, which are established to give remedy, where there is none at common law, have particular power over infants, to appoint them guardians; they have also the custody of ideots and lunatics, the superintendance of charities, trusts, and suminary powers in all bankrupt acts. Proceedings in these courts are conducted according to the civil law, and differ from common law proceedings, in the mode of proof, of trial, and in the relief given.
Of Crimes, and their Punishment.
1. Crimes may be committed by all persons possessed of free will, and sufficient understanding; and they may be either principals, or accessories.
2. Crimes cognizable by the municipal law, are such as are injurious to God, and his holy religion, as blasphemy, &c. 2. Such as are offences against national law; as piracy, &c. 3. Against the administrative power of the state; as high treason. 4. Offences against the rights of the public; as trade, justice, health, &c. 5. Offences derogating from the rights of individuals, affecting either their persons, habitations, or property.
3. Crimes affecting the persons of individuals, are such as destroy life; as murder, homicide, chance medley; there is homicide justifiable, as in self defence; excusable, as accidental; or felonious, as wilful murder.
4. Those crimes not destroying life, but which are injurious to the person, are felonious crimes, as mayhem, and rape, &c. or not felonious, as assault and battery, and false imprisonment.
5. Crimes affecting the habitations of individuals, are arson, or houseburning; and burglary, or house-breaking in the night-time, with a felonious intent.
6. Crimes affecting the property, are larceny, and malicious mischief; which are always supposed to be accompanied with a breach of the peace; or forgery, which is without a breach of the peace.
7. All these crimes may be prevented, by compelling suspected persons to give general, or special cognizances to keep the peace, and be of good be haviour.
8. Or those crimes may be punished in criminal courts, by presentment, indictment, trial by petit jury, conviction, judgment and execution.
9. Cruel and unusual punishments are prohibited, by the act concerning rights.
10. Treason, murder, and arson of an inhabited dwelling, are punishable with death, by hanging. Rape, robbery, burglary, sodomy, maiming, breaking a dwelling, and putting some person therein in fear, forging the proof of a deed, or public securities, and counterfeiting gold and silver coin, are punished by imprisonment in the state prison for life.
11. Forging a record, charter, deed, will, note, or bill of exchange; passing counterfeit money, or having the same with intent to pass it; or having unfinished notes to fill up, and pass; having plates for forging such notes; are crimes punishable by imprisonment for life, or any shorter period; unt loss than seven years.