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DISTRICT OF MASSACHUSETTS, to wit.
District Clerk's Office.

BE IT REMEMBERED, that on the twenty-sixth day of August, A. D. 1829, in the fifty-fourth year of the Independence of the United States of America, Hilliard, Gray, Little, & Wilkins, of the said district, have deposited in this office the title of a book, the right whereof they claim as proprietors, in the words following, to wit:

"A Discourse pronounced upon the Inauguration of the Author, as Dane Professor of Law in Harvard University, on the twenty-fifth day of August, 1829. By Joseph Story."

In conformity to the act of the Congress of the United States, entitled, " An Act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies during the times therein mentioned;" and also to an act, entitled, "An Act supplementary to an act, entitled, An Act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies during the times therein mentioned;' and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints."

JNO. W. DAVIS,

Clerk of the District of Massachusetts.

CAMBRIDGE:

E. W. METCALF AND COMPANY.

DISCOURSE.

IT has been customary in this university, for professors, upon their induction into office, to deliver a public discourse upon some topics suitable to the occasion. Upon the establishment of a new professorship it may also be expected, that he, who for the first time fills the chair, should give some account of the foundation, and of the studies, which it proposes to encourage. I shall endeavour not wholly

to disappoint the just expectations of my audience in both respects; premising, however, that much reliance must be placed upon their indulgence, since the subject affords little scope for elegant disquisition, and almost forbids those ornaments, which gratify the taste, and warm the imagination of the scholar.

My plan is, in the first place, to lay before you some considerations touching the general utility of the study of the law; and to address them with more pointed application to those, who propose to make it the business of their lives. In the next place, I shall briefly unfold the nature and objects of the professorship, which I have now the honor to occupy, and the particular studies, which it comprehends; so that the noble design of the founder may be amply vindicated, and receive, as it deserves, the public approbation. In proportion, however, to the value

and importance of these studies, I cannot but feel a diffidence, lest they should fail under my care of becoming as attractive and interesting as they ought; and that my own imperfect execution of duty should cast a shade upon the bright prospects, which the founder is opening to our view. In the present state of knowledge, such a diffidence might well become the teacher of any science; but the remark applies with augmented force to a science so vast, so intricate, and so comprehensive, as that of jurisprudence. In its widest extent it may be said almost to compass every human action; and, in its minute details, to measure every human duty. If we contemplate it in the highest order of subjects, which it embraces, it can scarcely be surpassed in dignity. It searches into and expounds the elements of morals and ethics, and the eternal law of nature, illustrated and supported by the eternal law of revelation. It is in this sense, that it has constituted the panegyric of philosophers and sages in almost every age. It is in this sense that Cicero has spoken of it, in a passage, which is upon the lips of every scholar: "Est quidam vera lex, recta ratio, naturæ congruens, diffusa per omnes, constans, sempiterna, quæ vocet ad officium jubendo, vetando a fraude deterreat, quæ tamen neque probos frustra jubet, aut vetat, nec improbos jubendo, aut vetando movet. Huic legi nec abrogari fas est, neque derogari ex hac aliquid licet; neque tota abrogari potest. Nec vero, aut per senatum aut per populum solvi hac lege possumus.' It is in this

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Cic. Fragment. de Repub. 17 Ernesti. Cic. Op. 185 (Wells & Lilly). See also, Cic. de Legg. Lib. i. § 6.

sense, also, that the genius of Sir William Jones, rising into poetical enthusiasm, has proclaimed, that "Sovereign law, the state's collected will,

O'er thrones and globes elate

Sits empress, crowning good, repressing ill."

But if we contemplate it in a narrower view, as a mere system of regulations for the safety and harmony of civil society; as the instrument of administering public and private justice; as the code, by which rights are ascertained, and wrongs redressed; by which contracts are interpreted, and property is secured, and the institutions, which add strength to government, and solid happiness to domestic life are firmly guarded;-if, I say, we contemplate it in this narrower view, its dignity may in some measure be lessened, but its design will yet appear sufficiently grand, and its execution sufficiently difficult, to have strong claims upon the gratitude and admiration of mankind.

The common law purports to be such a system of jurisprudence. By the common law is sometimes understood that collection of principles, which constitutes the basis of the administration of justice in England, in contradistinction to the maxims of the Roman code, which has universally received the appellation of the civil law. The latter has been adopted, or, if I may so say, inosculated, into the juridical polity of all continental Europe, as a fundamental rule. The former is emphatically the custom of the realm of England, and has no authority beyond her own territory, and the colonies, which she has planted in various parts of the world. It is no small

proof of its excellence, however, that where it has once taken root, it has never been superseded; and that its direct progress, or silent sway, has never failed to obliterate the attachment to other codes, whenever the accidents of conquest or cession have brought it within the reach of popular opinion. But there is another sense (which is the most usual sense), in which it is called the common law, to distinguish it from the statute law, or the positive enactments of the legislature. In this sense the common law is the lex non scripta, that is, the unwritten law, which cannot now be traced back to any positive text, but is composed of customs, and usages, and maxims, deriving their authority from immemorial practice, and the recognitions of courts of justice. Thus, the right of primogeniture, which is a fundamental rule of inheritances in England, does not depend upon any known statute, but upon the simple custom of the realm, of such high antiquity, that history does not reach its exact origin. Much, indeed, of this unwritten law may now be found in books, in elementary treatises, and in judicial decisions. But it does not derive its force from these circumstances. On the contrary, even judicial decisions are deemed but the formal promulgation of rules antecedently existing, and obtain all their value from their supposed conformity to those rules.

When our ancestors emigrated to America, they brought this common law with them, as their birthright and inheritance; and they put into operation so much of it as was applicable to their situation. It became the basis of the jurisprudence of all the

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