BUT as the long and universal neglect of this study, with us in England, seems, in some degree, to call in question the truth of this evident position, it shall, therefore, be the business of this introductory discourse, in the first place, to demonstrate the utility of some general acquaintance with the municipal law of the land, by pointing out it's particular uses in all considerable situations of life. Some conjectures will then be offered with regard to the causes of neglecting this useful study to which will be subjoined a few reflections on the peculiar propriety of reviving it in our own universities. b AND, first, to demonstrate the utility of some acquaintance with the laws of the land, let us only reflect a moment on the singular frame and polity of that land which is governed by this system of laws. A land, perhaps, the only one in the universe, in which political or civil liberty is the very end and scope of the constitution. This liberty, rightly understood, consists in the power of doing whatever the laws permit (1); which is only to be effected by a general conformity of all orders and degrees to those equitable rules of action, by which the meanest individual is protected from the insults and oppression of the greatest. As, therefore, every subject is с b Montesq. Esp. L. l. 11. c. 5. Facultas ejus, quod cuique facere libet, nisi quid vi, aut jure prohibetur. Inst. 1. 3. 1. (1) This seems an imperfect definition of civil liberty, as it neither provides that the laws, which are to be the rule of conduct, should be just and equal, nor that the subject should have taken part in their enactment. Consistently with this a negro-slave on a sugar-estate is free; he may do whatever the laws permit him to do. It is probable that the author had his eye on the definition of Montesquieu, which is still more incomplete. La liberté est le droit de faire tout ce que les lois permettent. Esp. L. 1. xi. c.5. The passage cited from Justinian cannot, I think, have been intended for a definition of civil liberty. Libertas quidem, (ex qua etiam liberi vocantur) est naturalis facultas ejus quod cuique facere libet, nisi quid vi, aut jure prohibetur. This may describe a state of natural freedom well enough, which is the power of acting as we please, unrestrained either by force or law; but restraint by law is consistent with civil freedom. Locke's definition seems to supply what is wanting in those before mentioned. "Freedom of men under government (says he) is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not, and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man." On Government, b. ii. ch. iv. interested in the preservation of the laws, it is incumbent upon every man to be acquainted with those, at least, with which he is immediately concerned; lest he incur the censure, as well as inconvenience, of living in society without knowing the obligations which it lays him under. And thus much may suffice for persons of inferior condition, who have neither time nor capacity to enlarge their views beyond that contracted sphere, in which they are appointed to move. But those on whom nature and fortune have bestowed more abilities and greater leisure, cannot be so easily excused. These advantages are given them, not for the benefit of themselves only, but also of the public; and yet they cannot, in any scene of life, discharge properly their duty either to the public or themselves, without some degree of knowledge in the laws. To evince this the more clearly, it may not be amiss to descend to a few particulars. LET us, therefore, begin with our gentlemen of independent estates and fortune, the most useful as well as considerable body of men in the nation; whom even to suppose ignorant in this branch of learning is treated by Mr. Locked as a strange absurdity. It is their landed property, with it's long and voluminous train of descents and conveyances, settlements, entails, and incumbrances, that forms the most intricate and most extensive object of legal knowledge. The thorough comprehension of these, in all their minute distinctions, is, perhaps, too laborious a task for any but a lawyer by profession; yet still the understanding of a few leading principles, relating to estates and conveyancing, may form some check and guard upon a gentleman's inferior agents, and preserve him at least from very gross and notorious imposition. AGAIN, the policy of all laws has made some forms necessary in the wording of last wills and testaments, and more with regard to their attestation. An ignorance in these must always be of dangerous consequence, to such as by choice or necessity compile their own testaments without any technical assistThose who have attended the courts of justice are the best witnesses of the confusion and distresses that are hereby ance. 4 Education, § 187. [7] occasioned in families; and of the difficulties that arise in discerning the true meaning of the testator, or sometimes in discovering any meaning at all: so that in the end his estate [8] may often be vested quite contrary to these his enigmatical intentions, because, perhaps, he has omitted one or two formal words, which are necessary to ascertain the sense with indisputable legal precision, or has executed his will in the presence of fewer witnesses than the law requires. [9] BUT to proceed from private concerns to those of a more public consideration. All gentlemen of fortune are, in consequence of their property, liable to be called upon to establish the rights, to estimate the injuries, to weigh the accusations, and sometimes to dispose of the lives of their fellow-subjects, by serving upon juries. In this situation they have frequently a right to decide, and that upon their oaths, questions of nice importance, in the solution of which some legal skill is requisite; especially where the law and the fact, as it often happens, are intimately blended together. And the general incapacity even of our best juries, to do this with any tolerable propriety, has greatly debased their authority; and has unavoidably thrown more power into the hands of the judges, to direct, control, and even reverse their verdicts, than, perhaps, the constitution intended. BUT it is not as a juror only that the English gentleman is called upon to determine questions of right, and distribute justice to his fellow-subjects: it is principally with this order of men that the commission of the peace is filled. And here a very ample field is open for a gentleman to exert his talents by maintaining good order in his neighbourhood; by punishing the dissolute and idle; by protecting the peaceable and industrious; and, above all, by healing petty differences, and preventing vexatious prosecutions. But, in order to attain these desirable ends, it is necessary that the magistrate should understand his business; and have not only the will, but the power also (under which must be included the knowledge), of administering legal and effectual justice. Else, when he has mistaken his authority, through passion, through ignorance, or absurdity, he will be the object of contempt from his infe riors, and of censure from those to whom he is accountable for his conduct. YET farther; most gentlemen of considerable property, at some period or other in their lives, are ambitious of representing their country in parliament; and those, who are ambitious of receiving so high a trust, would also do well to remember it's nature and importance. They are not thus honourably distinguished from the rest of their fellow-subjects, merely that they may privilege their persons, their estates, or their domestics; that they may list under party banners; may grant or withhold supplies; may vote with or vote against a popular or unpopular administration; but upon considerations far more interesting and important. They are the guardians of the English constitution; the makers, repealers, and interpreters of the English laws; delegated to watch, to check, and to avert every dangerous innovation, to propose, to adopt, and to cherish any solid and well-weighed improvement; bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to their posterity, amended, if possible, at least without any derogation. And how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of the old! what kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments! INDEED it is perfectly amazing that there should be no other state of life, no other occupation, art, or science, in which some method of instruction is not looked upon as requisite, except only the science of legislation, the noblest and most difficult of any. Apprenticeships are held necessary to almost every art, commercial or mechanical: a long course of reading and study must form the divine, the physician, and the practical professor of the laws: but every man of superior fortune thinks himself born a legislator. Yet Tully was of a different opinion: "It is necessary (says he') for a "senator to be thoroughly acquainted with the constitution; " and this (he declares) is a knowledge of the most exten e De Legg. 3. 18. Est senatori necessarium nosse rempublicam; idque latè gentiae, memoriae est; sine quo para- [ 10 ] [11] "sive nature; a matter of science, of diligence, of reflec"tion; without which no senator can possibly be fit for his "office." THE mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. The common law of England has fared like other venerable edifices of antiquity, which rash and unexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement. Hence frequently it's symmetry has been destroyed, it's proportions distorted, and it's majestic simplicity exchanged for specious embellishments and fantastic novelties. For, to say the truth, almost all the perplexed questions, almost all the niceties, intricacies and delays, (which have sometimes disgraced the English, as well as other courts of justice,) owe their original not to the common law itself, but to innovations that have been made in it by acts of parliament; "overladen (as sir Edward "Coke expresses it) with provisoes and additions, and 66 66 many times on a sudden penned or corrected by men of "none, or very little judgment in law." This great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law; and warmly laments the confusion introduced by ill-judging and unlearned legislators. "But if," he subjoins, "acts of parliament were after the old fashion penned by such only as perfectly knew what the common "law was before the making of any act of parliament con"cerning that matter, as also how far forth former statutes "had provided remedy for former mischiefs, and defects dis"covered by experience; then should very few questions in "law arise, and the learned should not so often and so much " perplex their heads to make atonement and peace, by con"struction of law, between insensible and disagreeing words, "sentences, and provisoes, as they now do." And if this inconvenience was so heavily felt in the reign of Queen Elizabeth, you may judge how the evil is increased in later times, 2 Rep. pref. |