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Updated: June 3, 2025
A command prescribes only a single act, and it is to commands, therefore, that "Themistes" are more akin than to laws. They are simply adjudications on insulated states of fact, and do not necessarily follow each other in any orderly sequence. The literature of the heroic age discloses to us law in the germ under the "Themistes" and a little more developed in the conception of "Dike."
In all parts of the world its judgments are spoken of with respect. Its adjudications of prize law are a code for all future time. Upon commercial law it has brought us nearly to one system, befitting the probity of a great commercial nation. Over its whole path, learning and intelligence and integrity have shed their combined luster."
He could not even understand what was meant by the charges against them of having overturned the laws, the justice, and the revenues of their country. What were their laws? the arbitrary mandates of capricious despotism. What their justice? the partial adjudications of venal magistrates. What their revenues? national bankruptcy.
"These considerations tend to show the principles of several opinions and adjudications, which are found in English law-books, relative to the holding over of the office of sheriff. "None of the statutes of England or Great Britain continued to be laws of this state after the first of May, 1778.
It is evident, therefore, that it required an original and fresh intellectual effort to gather together the hundreds of adjudications scattered through our various State reports, classify them, compare them, study them, and construct a homogeneous and extensive analysis of their doctrine.
It is especially gratifying that our prize courts, by the impartiality of their adjudications, have commanded the respect and confidence of maritime powers. The supplemental treaty between the United States and Great Britain for the suppression of the African slave trade, made on the 17th day of February last, has been duly ratified and carried into execution.
On the other side, it was urged by J. Adams, Lee, Wythe and others, that no gentleman had argued against the policy or the right of separation from Britain, nor had supposed it possible we should ever renew our connection; that they had only opposed its being now declared: That the question was not whether, by a Declaration of Independence, we should make ourselves what we are not; but whether we should declare a fact which already exists: That, as to the people or parliament of England, we had always been independent of them, their restraints on our trade deriving efficacy from our acquiescence only, and not from any rights they possessed of imposing them, and that so far, our connection had been federal only, and was now dissolved by the commencement of hostilities: That, as to the King, we had been bound to him by allegiance, but that this bond was now dissolved by his assent to the late act of parliament, by which he declares us out of his protection, and by his levying war on us, a fact which had long ago proved us out of his protection; it being a certain position in law, that allegiance and protection are reciprocal, the one ceasing when the other is withdrawn: That James the II. never declared the people of England out of his protection, yet his actions proved it and the parliament declared it: No delegates then can be denied, or ever want, a power of declaring an existent truth: That the delegates from the Delaware counties having declared their constituents ready to join, there are only two colonies, Pennsylvania and Maryland, whose delegates are absolutely tied up, and that these had, by their instructions, only reserved a right of confirming or rejecting the measure: That the instructions from Pennsylvania might be accounted for from the times in which they were drawn, near a twelvemonth ago, since which the face of affairs has totally changed: That within that time, it had become apparent that Britain was determined to accept nothing less than a carte-blanche, and that the King's answer to the Lord Mayor, Aldermen, and Common Council of London, which had come to hand four days ago, must have satisfied every one of this point: That the people wait for us to lead the way: That they are in favor of the measure, though the instructions given by some of their representatives are not: That the voice of the representatives is not always consonant with the voice of the people, and that this is remarkably the case in these middle colonies: That the effect of the resolution of the 15th of May has proved this, which, raising the murmurs of some in the colonies of Pennsylvania and Maryland, called forth the opposing voice of the freer part of the people, and proved them to be the majority even in these colonies: That the backwardness of these two colonies might be ascribed, partly to the influence of proprietary power and connections, and partly, to their having not yet been attacked by the enemy: That these causes were not likely to be soon removed, as there seemed no probability that the enemy would make either of these the seat of this summer's war: That it would be vain to wait either weeks or months for perfect unanimity, since it was impossible that all men should ever become of one sentiment on any question: That the conduct of some colonies, from the beginning of this contest, had given reason to suspect it was their settled policy to keep in the rear of the confederacy, that their particular prospect might be better, even in the worst event: That, therefore, it was necessary for those colonies who had thrown themselves forward and hazarded all from the beginning, to come forward now also, and put all again to their own hazard: That the history of the Dutch revolution, of whom three states only confederated at first, proved that a secession of some colonies would not be so dangerous as some apprehended: That a declaration of Independence alone could render it consistent with European delicacy, for European powers to treat with us, or even to receive an Ambassador from us: That till this, they would not receive our vessels into their ports, nor acknowledge the adjudications of our courts of admiralty to be legitimate, in cases of capture of British vessels: That though France and Spain may be jealous of our rising power, they must think it will be much more formidable with the addition of Great Britain; and will therefore see it their interest to prevent a coalition; but should they refuse, we shall be but where we are; whereas without trying, we shall never know whether they will aid us or not: That the present campaign may be unsuccessful, and therefore we had better propose an alliance while our affairs wear a hopeful aspect: That to wait the event of this campaign will certainly work delay, because, during this summer, France may assist us effectually, by cutting off those supplies of provisions from England and Ireland, on which the enemy's armies here are to depend; or by setting in motion the great power they have collected in the West Indies, and calling our enemy to the defence of the possessions they have there: That it would be idle to lose time in settling the terms of alliance, till we had first determined we would enter into alliance: That it is necessary to lose no time in opening a trade for our people, who will want clothes, and will want money too, for the payment of taxes: And that the only misfortune is, that we did not enter into alliance with France six months sooner, as, besides opening her ports for the vent of our last year's produce, she might have marched an army into Germany, and prevented the petty princes there, from selling their unhappy subjects to subdue us.
Pendleton, would be an arduous undertaking, of vast research, of great consideration and judgment; and when reduced to a text, every word of that text, from the imperfection of human language, and its incompetence to express distinctly every shade of idea, would become a subject of question and chicanery, until settled by repeated adjudications; that this would involve us for ages in litigation, and render property uncertain, until, like the statutes of old, every word had been tried and settled by numerous decisions, and by new volumes of reports and commentaries; and that no one of us, probably, would undertake such a work, which, to be systematical, must be the work of one hand.
An example of the approach of decisions towards each other from the opposite poles, and of the function of the jury midway, is to be found in the Massachusetts adjudications, that, if a child of two years and four months is unnecessarily sent unattended across and down a street in a large city, he cannot recover for a negligent injury; /1/ that to allow a boy of eight to be abroad alone is not necessarily negligent; /2/ and that the effect of permitting a boy of ten to be abroad after dark is for the jury; /3/ a coupled with the statement, which may be ventured on without authority, that such a permission to a young man of twenty possessed of common intelligence has no effect whatever.
The text of these statutes had been so fully explained and defined, by numerous adjudications, as scarcely ever now to produce a question in our courts.
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